UNIVERSITY  OF  CALIFORNIA 
AT   LOS  ANGELES 


ROBERT   ERNEST   COWAN 


II 


STATE   OF   CALIFORNIA. 


\o.    ,7.T,VO. 


MANDAMUS. 

THE  SPRING  VALLEY  WATER  WO^KS,  15th  Di^  Courfcj 

Respondent,    ,  San  Francisco. 

MONROE  ASHBURY,  AUDITOR,  etc.,  I  x,,  in  i3^  court, 


AppeUant. 


1 


JVo.  5588. 

THE  SPRING  VALLEY  WATER  WORKS, 

Respondent,         PROHIBITION. 

The  City  and  County  of  San  Francisco,  et  al., 

Appellants. 


THE  SPRING  VALLEY  WATER  WORKS, 


Respondent, 


ANDREW  J.  BRYANT,  MAYOR,  etc,,  et  al., 


Appellants. 


REVIEW. 

FROM 

loth  District  Court, 
San  Francisco. 


No.  in  Dist.  Court, 
20,578. 


ARGUMENT  OF  J.  PJOGE,  FOR  PLAINTIFF. 


IN  THE  SUPREME  COURT 

OF   THE 

STATE   OF   CALIFORNIA. 


SPRING  VALLEY  WATER  COMPANY 

vs. 
CITY  AND  COUNTY  OF  SAN  FRANCISCO. 


ARGUMENT  OF  J.  P.  HOGE. 

FRIDAY  AFTERNOON,  May  11,  1877. 


Mr.  Hoge  said : 

MAY  IT  PLEASE  YOUR  HONORS: — 

In  what  I  have  to  say  in  these  cases,  I  will 
endeavor  to  be  as  brief  as  possible,  and  to  wander 
as  little  as  possible  from  the  points  that  are  really 
in  issue.  As  was  said  by  one  of  the  learned 
counsel,  in  a  decision  read  during  the  course  of 
the  argument  here:  "  The  argument  has  taken  a 
very  wide  range,  but  the  points  involved  are 
exceedingly  limited."  To  which  points  the  Court 
proposed  to  confine  itself. 


Certainly,  this  argument  has  traveled  a  long 
way  beyond  any  question  really  involved  in  these 
controversies. 

I  do  not  propose  to  follow  the  learned  counsel 
that  has  discussed  these  cases  for  three  or  four 
days  past  in  all  these  wanderings  of  his.  Cer- 
tainly not  the  least  entertaining  portion  was  the 
last  of  his  argument — was  his  peroration.  I  liked 
it  better  than  I  did  certain  other  portions  of  his 
argument,  because  it  was  in  better  temper.  It 
was  amusing  and  entertaining,  and  lacked  a  good 
deal  of  the  malice  which  he  put  into  many  other 
sections  of  his  remarks. 

He  took  exception  to  what  1  supposed  was  a 
very  complimentary  allusion  on  the  part  of  one  of 
the  counsel — my  friend  and  colleague,  Mr.  New- 
lands.  Mr.  Newlands  undertook  to  compare  the 
counsel  on  the  other  side  to  a  very  celebrated 
philosopher,  whose  history  is  very  well  known, — 
to  that  philosopher,  Diogeues.  He  referred  to  his 
life,  and  I  believe  to  his  historic  tub,  with  his 
lantern  in  his  hand,  in  search  of  an  honest  man. 

I  did  not  myself  see  anything  that  was  offen- 
sively derogatory  to  my  friend  Swift,  in  likening 
him  to  so  great  a  philosopher  as  Diogenes.  But 
my  friend  Swift  took  exception  to  this  compari- 
son, and  he  came  back  on  my  learned  friend,  Mr. 
Newlands,  in  what  I  think  was  an  unkindly  spirit; 
in  his  retort  saying  that  my  colleague  was  too 
smart  to  live;  that  whom  the  gods  love  die  young; 
that  he  might  not  live  to  come  into  the  inheritance 
which  it  was  intimated  his  father-in-law  might  be 
disposed  to  transmit  to  him;  that  he  might  not 


live  to  enjoy  the  princely  legacy  for  which  he  had 
reasonable  or  ambitious  expectations. 

Now,  that  was  very  unkind  in  my  friend  Mr. 
Swift.  I  don't  think  that  the  remarks  made  by 
Mr.  Newlands  warranted  or  justified  so  severe  or 
personal  attack.  Therefore  I  say  I  liked  much 
better  that  portion  of  his  argument,  or  address, 
which  was  evidently  uttered  in  a  more  kindly 
spirit. 

My  friend  Mr.  Swift  thinks  that  he  will  himself 
die  some  of  these  days — from  insanity!  But,  cer- 
tainly, he  will  not  die  from  insanity  superinduced 
by  those  things  which  generally  produce  it.  If 
he  does  die  from  insanity,  his  disease  will  not 
come  from  the  use  of  whiskey ;  it  will  come,  if  at 
all,  from  water  on  the  brain!  [Merriment.]  And 
he  is  not  peculiar  in  that  either.  There  seems  to 
be  the  disease  of  water  on  the  brain  prevailing 
among  all  the  counsel  for  the  city  in  this  case.  I 
fear  they  are  all  in  danger  of  dying  late,  if  not 
early,  from  water  on  the  brain. 

I  do  not  propose,  if  your  Honors  please,  to 
waste  your  time  in  this  kind  of  a  discussion. 

This  is  a  Court  of  law  ;  a  Court  of  errors  ;  a 
Court  of  last  resort ;  where  the  rights  of  par- 
ties and  the  rights  of  the  public  are  to  be 
adjudicated  upon  grave  consideration,  upon 
principles  of  law,  and  reason  and  of  right. 
And,  therefore,  all  this  kind  of  discussion  is  very 
much  out  of  place  ;  and  this  resorting  to  abusive 
epithets — which  have  been  very  freely  indulged 
in  here — are,  in  my  judgment,  speaking  very  much 
out  of  place.  It  is  in  bad  taste.  I  will  go  fur- 
ther and  say,  it  is  lacking  in  the  respect  and  pro- 


priety  which  should  characterize  and  govern  the 
proceedings  of  a  body  like  this. 

I  should  be  very  slow,  in  any  event,  to  follow 
the  learned  gentlemen  who  have  preceded  me  on 
the  other  side,  and  go  into  any  such  kind  of  a 
discussion.  Though  I  might  do  it  very  success- 
fully, I  will  not  do  it. 

This  is  nothing  but  a  case  which  presents  for 
consideration  the  rights  of  a  private  corporation, 
and  the  rights  of  a  public  municipal  body.  They 
are,  in  my  judgment,  pure  questions  of  law,  and 
of  law  alone.  In  my  judgment,  they  are  very 
simple  and  very  few. 

But  here  is  a  brief  of  one  hundred  pages,  con- 
taining— well,  I  don't  know  exactly  how  many — 
containing,  I  suppose,  two  hundred  and  fifty 
authorities,  which  has  been  handed  to  us  in  the 
course  of  the  argument — while  the  argument  was 
progressing.  Of  course,  we  could  not  be  sup- 
posed to  know  much  about  these  authorities,  or 
how  they  are  pertinent  to  the  questions  involved  ; 
because  we  have  had  no  opportunity  to  examine 
them.  I  only  know  about  them  from  hearing 
counsel  read  some  of  them  in  the  course  of  his 
argument. 

In  my  judgment  there  is  not  a  single  authority 
cited  here  —  certainly  not  one  from  which  he  has 
read — that  really  has  any  bearing,  any  pertinency 
or  governing  effect  upon  the  real  questions  in- 
volved in  the  controversy,  which  are  presented  in 
the  records— not  one  of  them.  I  certainly  shall 
not  follow  him  in  his  discussion  or  his  allusions 
to  the  question  of  property  in  water. 


I  shall  not  follow  him  in  a  review  of  the  com- 
mon law  doctrines  in  relation  to  the  water  of 
flowing  streams,  which  involves  questions  entirely 
outside  of  this  record. 

To  say  that  a  corporation  which  has  invested 
millions  in  securing  water  and  water  privileges, 
in  bringing  it  into  a  city  in  its  pipes,  in  building 
aqueducts,  in  building  reservoirs — acting,  in  this 
connection  and  in  this  operation,  under  Acts  of 
the  Legislature  for  the  disposition  of  water  and 
the  collecting  of  water — to  say  that  such  a  cor- 
poration has  not  in  such  a  manner  acquired  prop- 
erty which  is  invested  with  all  the  insignia  and 
realities  of  property,  is  to  lay  down  an  exceed- 
ingly novel  proposition  —  a  proposition  so  un- 
founded in  reason  and  principle  and  authority, 
that  I  do  not  propose  to  waste  one  moment  in 
discussing  it  at  all. 

Now,  may  it  please  your  Honors,  here  are  three 
of  these  cases  here. 

One  is  the  case^of  the  Spring  Valley  Water 
Company  against  the  City  and  County  of  San 
Francisco  and  its  Board  of  Supervisors  and  its 
Mayor  and  other  officers.  That  is  a  petition  for 
prohibition — an  original  case  in  this  Court. 

The  second  is  the  case  of  the  appeal  from  the 
decision  of  the  Fifteenth  District  Court,  in  the 
case  where  we  make  complaint  against  the  Au- 
ditor of  the  city,  Mr.  Ashbury. 

And  the  third  is  a  case  against  the  Mayor  and 
others,  on  appeal  from  the  Twelfth  District  Court, 
on  a  writ  of  certwrari,  or  "  writ  of  review,"  as  the 
Act  styles  it. 


Now,  these  cases  have  been  set  down  by  the 
Court  to  be  argued  together. 

The  first  being  an  original  proceeding  by  the 
Spring  Valley  Water  Company,  in  this  Court, 
against  the  city  and  county  and  the  Mayor  and 
Board  of  Supervisors,  to  prohibit  them'  from  act- 
ing under  certain  resolutions,  and  from  passing 
certain  ordinances,  by  which  the  city  proposes  to 
take  the  property  of  the  Spring  Valley  Water 
Company,  and  apply  it  to  the  municipal  purposes 
of  the  city  and  county,  without  compensation. 

The  second  proceeding  is  an  appeal  from  the 
judgment  of  the  Fifteenth  District  Court,  award- 
ing a  mandamus  to  the  Auditor  to  compel  him  to 
enter  in  the  proper  books  the  allowance  of  the 
claim  of  the  Water  Company  for  $9-2,000,  as  al- 
lowed and  ordered  paid  by  the  Board  of  Super- 
visors, on  final  appeal  from  the  decision  of  the 
Auditor,  in  conformity  with  the  provisions  of  the 
Consolidation  Act. 

The  third  is  an  appeal  from. the  decision  of  the 
Twelfth  District  Court,  rendered  on  the  writ  of 
review,  in  which  that  Court  decided  adversely  to 
the  claim  of  the  city. 

Now,  the  object,  of  all  these  proceedings,  if  your 
Honors  please,  seems  to  be  to  procure  an  early 
decision  by  this  Court — the  Court  of  last  resort — 
of  all  the  matters  of  dispute  between  the  city  and 
county,  and  the  corporation;  a  decision  which 
will  settle  all  the  questions  involved  between 
these  two  contending  parties;  and  which  will 
authoritatively  determine,  beyond  further  contro- 
versy, the  whole  matter,  and  settle  the  rights  of 
the  public  and  the  rights  of  the  corporation  ;  and 


which  will  put  an  end  to  any  further  difficulty  or 
discussion  in  relation  to  those  rights;  with  which 
decision,  no  matter  how  it  may  go,  either  party 
will  be  satisfied  ;  the  rights  of  the  public  will 
be  protected,  and  the  rights  of  the  private  incor- 
porators  will  be  equally  protected.  With  this 
decision,  there  is  no  further  disposition,  I  appre- 
hend, on  either  side,  to  make  a  future  quarrel. 

Now  then,  under  these  circumstances,  I  have 
not  understood  that  there  was  any  question  made 
as  to  the  form  or  applicability  of  the  remedy 
sought  by  the  original  proceeding  in  this  Court. 

The  question  raised  in  that  proceeding — in 
fact,  in  both  of  the  others — the  appeal  from  the 
Fifteenth  and  from  the  Twelfth,  involves  one  or 
two  questions  which  are  identical  in  all  of  them. 

That  case  from  the  Fifteenth  District  Court 
involves  some  considerations  or  principles  which 
did  not  exist  in  the  other  cases,  and  it  may  be 
considered  separately.  I  will  endeavor  to  treat 
them  separately,  as  far  as  I  can,  with  some  refer- 
ence to  the  manner  in  which  the  case  has  already 
been  discussed.  As  far  as  I  can,  I  propose  to 
separate  these,  and  to  discuss  those  questions  and 
principles  which  are  common  with  the  cases. 

And  it  matters  not,  if  your  Honors  please, 
whether  the  special  remedy  sought  in  the  case  of 
prohibition,  and  in  the  case  of  certiorari,  is  main- 
tained, so  that  the  Court  determines  all  the 
matters  involved  ;  determines  the  principles  here 
in  question;  and  thus  passes  authoritatively,  and 
distinctly,  and  finally,  upon  the  rights  of  the  re- 
spective parties.  The  confessed  and  asserted 
object  of  both  is  to  have  a  full  and  complete  de- 


8 


cision  of  these  cases  by  the  Court  at  this  time. 
And  it  is  particularly  desirable  that  the  Court 
should  finally  pass  upon  the  rights  of  the  parties 
as  they  may  be  involved  in  the  matters  which 
are  set  up  in  common  in  all  these  cases,  so  that 
no  future  litigation  may  arise,  in  which  the 
remedy  may  be  sought. 

Now,  then,  as  I  said,  I  propose  to  discuss  the 
matters  which  are  common  to  all  these  cases,  in 
the  first  place.  I  do  not  propose  to  go  over  the 
entire  field  of  discussion  which  has  been  indulged 
in  here,  in  the  prohibition  cases,  nor  in  any  of 
the  other  cases,  further  than  is  necessary  with  a 
view  to  the  argument  which  I  have  proposed  to 
make. 

The  petition  sets  up  all  the  facts.  The  peti- 
tion sets  up  the  former  decision  of  this  Court. 
The  petition  sets  up  the  actions  and  doings  of  the 
city,  the  resolutions  that  were  passed,  the  ordi- 
nances that  were  passed,  proposed,  and  threat- 
ened; and  asks  for  a  writ  of  prohibition.  The 
answer  avers  the  right  of  the  city  to  tap 
the  pipes,  under  the  law  of  the  22d  of  April, 
1858,  and  to  take  water  in  cases  of  fire  or  other 
great  necessity — and  that  including  all  the  water 
used,  or  that  has  ever  been  used  by  the  city  for 
any  purpose  whatever — and  then  it  sets  up  the 
various  uses  to  which  they  had  put  the  water  as 
being  purposes  of  "  great  necessity  "  within  the 
meaning  of  that  clause  in  the  Act. 

They  travel  into  a  long  account  of  an  old  suit, 
and  of  the  question  there  involved  in  relation  to 
the  old  San  Francisco  Water  Works  Company; 
referring  to  many  Bother  things  which  I  do  not 


9 


propose  to  take  time  in  considering  now.  They 
set  up  and  aver  in  their  pleadings,  that  they  now 
take,  and  have  always  taken  the  water  for  the 
same  purposes  precisely  for  which  they  were  alleged 
to  take  it,  in  the  case  which  has  been  already 
determined  by  the  Supreme  Court;  and  that  they 
did  not  claim  now  any  other  right  than  they 
claimed  then. 

They  set  up  some  additional  defenses,  which 
will  be  alluded  to  at  the  proper  places. 

Now  then  it  will  be  seen,  if  your  Honors  please, 
that  these  pleadings,  stripped  of  the  verbiage  and 
useless  averments  and  prolix  statements  with 
which  they  are  filled — it  will  be  seen  by  your 
Honors,  if  you  take  the  trouble  to  read  them — 
present  a  single  question:  that  under  the  previous 
corporation  act  of  1858,  this  question  stands  first: 
that  the  City  and  County  of  San  Francisco  is 
entitled  to  take  the  water  of  the  Spring  Valley 
Water  Company  and  appropriate  it  free  of  charge, 
without  compensation,  to  all  the  municipal  uses  of 
the  city,  without  limit. 

And  it  appears,  second,  by  the  pleadings,  that 
the  city  is  entitled  to  do  the  same  thing,  because 
the  Spring  Valley  Water  Company  is  the  suc- 
cessor of  the  San  Francisco  Water  Works,  and 
bound  to  give  water  free  of  charge  for  all  pur- 
poses other  than  the  sprinkling  of  the  streets. 
Under  the  provisions  of  Orders  46  and  172, 
approved  by  the  Legislature,  it  is  alleged  that  the 
old  company  was  bound  by  what  is  said  to  be  a 
contract,  to  that  effect;  and  the  Spring  Valley 
Water  Company,  having  purchased  the  property 
and  interests  of  that  company,  its  franchises,  etc., 


10 

is  said  to  succeed  to  these  obligations.  The  Spring 
Valley  Water  Company  having  purchased  the 
interests  of  the  San  Francisco  Water  Works,  it  is 
claimed  that  the  former  is  bound,  under  the 
terms  of  its  acquired  franchise,  to.  make  the  sup- 
ply unlimited  and  without  charge. 

Now,  I  understand,  if  your  Honors  please,  from 
an  examination  of  all  these  pleadings,  that  these, 
and  these  alone,  are  the  questions  that  are  raised, 
and  which  present  themselves  to  the  considera- 
tion of  1he  Court  at  this  time. 

These  being  the  issues,  then,  we  are  met  at  the 
very  threshold  with  the  inquiry:  Which  of  them; 
and  what  are  they? — are  now  open  to  discus- 
sion upon  the  face  of  these  records?  Have  they 
not,  as  we  contend,  been  already  determined  by 
the  previous  adjudication  of  this  Court,  in  the 
case  of  the  city  arid  county  against  the  Spring 
Valley  Water  Company,  as  finally  adjudged  and 
reported  in  the  48th  Cal. ;  which  is  set  up  and 
relied  upon  in  the  pleadings  and  proceedings 
here. 

The  proposition  being  on  the  one  side — on  our 
side — that  either  question  which  is  now  attempted 
to  be  raised,  was  included  in,  raised  by,  and  de- 
cided by  the  Supreme  Court,  in  the  case  referred 
to — in  the  case  of  the  City  and  County  of  San 
Francisco  vs.  Spring  Valley  Water  Company;  and 
that  not  one  of  them  is  open  now  to  discussion. 
That  is  the  proposition  on  our  side. 

On  the  other  side:  Judging  from  the  argument, 
I  am  unable  to  see  what  question  was  decided  by 
the  Supreme  Court  in  the  case  referred  to.  It  is 
impossible  for  me  to  see  that  any  and  all  questions 


11 


are  not  still  open  to  argument  and  adjudication  in 
the  present  proceeding  if  the  proposition  on  the 
other  side,  as  I  understand  it,  is  correct. 

It  becomes  necessary,  therefore,  if  your  Honors 
please,  to  make  an  examination  into  these  mat- 
ters; to  inquire  as  to  the  various  opinions  deliv- 
ered by  this  Court  in  the  different  decisions  in 
that  case; — what  were  the  pleadings,  what  were 
the  questions  involved  ;  what  were  the  issues 
before  the  Court  ?  And  that  will  show  the  mat- 
ter one  way  or  the  other — either  that  we  are  right 
or  that  our  adversaries  are  right.  We  say  that 
nothing  new  is  now  present  in  these  pleadings  ; 
not  a  single  fact  which  was  not  present,  and  which 
did  not  exist,  and  which  was  not  well  known  at 
the  time  of  the  commencement  of  that  case. 

Now,  then,  if  you  Honors  please,  I  do  this  with- 
out any  doubt  in  my  own  mind  as  to  the  fact.  I 
make  this  inquiry,  not  to  weary  your  patience,  but 
for  the  purpose  of  showing  what  was  the  real  mat- 
ter in  issue  and  the  real  points  decided,  inasmuch 
as  there  seems  to  be  some  doubt  in  the  mind  of  the 
Court  as  to  what  were  the  issues  in  those  pro- 
ceedings—  what  was  decided,  and  how  far  the 
judgment  covers  the  questions  that  are  involved 
or  attempted  to  be  raised  and  re-argued  here. 
Because,  1  will  say  in  passing,  with  the  excep- 
tion of  some  little  amplification,  some  little  in- 
dulgence in  the  operations  of  fancy  and  imagina- 
tion, in  some  instances,  and  some  few  additional 
authorities,  there  is  no  difference  in  the  character 
of  the  case,  as  presented,  and  the  main  issues 
which  exist  here.  There  is  not  one  single  propo- 
sition made  in  this  long  argument  here,  since  last 


12 


Monday  morning — not  a  single  proposition — that 
was  not  made  and  discussed,  over  and  over  again, 
in  the  case  to  which  I  refer. 

As  will  appear  presently,  the  case  went  through 
a  long  discussion — debated  over  and  over  again, 
orally  in  the  Court,  by  briefs,  by  long  arguments, 
written  and  printed ;  discussed  by  a  great  variety 
of  counsel,  both  on  the  part  of  the  city  and  on 
the  part  of  the  corporation.  And  I  say  that, 
in  that  discussion,  every  one  of  these  ques- 
tions was  debated  to  the  largest  extent — every 
one  that  can  be  raised  in  these  cases — with  the 
exception  of  the  appeal  from  the  Fifteenth  Dis- 
trict Court  in  the  Auditor's  case — with  the  excep- 
tion of  a  few  questions  involved  in  that  case  and 
not  involved  in  the  rest  of  them.  I  repeat,  that, 
with  that  exception,  not  one  of  these  questions 
here  presents  any  new  issue.  There  is  no  ques- 
tion here  which  was  not  again  and  again  pre- 
sented, by  printed  argument  and  by  oral  discus- 
sion, at  that  time;  and  not  one  which  was  not 
passed  upon,  directly  and  specifically^  by  the 
various  opinions  delivered  by  this  Court. 

Now  then,  if  your  Honors  .please,  I  propose, 
very  briefly,  to  go  over  that  case  and  give  rny 
opinion  as  to  what  was  decided,  and  thoroughly 
decided,  by  the  Court  at  that  time.  I  will  not 
stop  to  read  portions  of  the  opinions  from  the 
books.  I  will  refer  to  the  pages  where  you  will 
find  the  points  discussed,  to  which  I  allude  in 
each  instance. 

AF  this  Court  said,  on  another  occasion,  in 
the  case  of  Sullivan  vs.  Triunfo  Gold  and  Sil- 
ver Mining  Company — (by  the  way,  I  do  not 


13 

propose  to  read  any  authorities  from  the  books, 
as  I  have  stated ;  as  it  is  easier  to  read  them  from 
my  notes,  giving  the  number  of  the  volume  and 
page) — in  the  case  of  Sullivan  vs.  Triunfo  Gold 
and  Silver  Mining  Company,  (39  Cal.,  page  459) : 
''  Where  the  alleged  new  fact  existed  at  the  com- 
mencement of  the  former  action,  in  which  the 
point  at  issue  was  the  same,  and  the  plain  tiff,  neg- 
lected to  avail  himself  of  it,  he  is  not  entitled  to 
set  it  up  in  a  subsequent  action." 

Now  this  is  a  simple  announcement,  by  this 
Court,  of  a  well-settled  determination — a  well- 
settled  determination  of  law — that  a  decision  and 
judgment  includes  every  point  involved,  or  which 
might  have  been  raised,  whether  raised  or  not. 

Mr.  Justice  RHODES.  You  mean,  upon  the  is- 
sues, as  presented  ? 

Mr.  HOGE.  Yes.  sir.  I  will  explain  myself 
thoroughly.  So  well  settled  is  that  determina- 
tion, that  you  can  scarcely  take  up  a  law-book, 
treating  of  such  subjects,  where  this  determina- 
tion is  not  laid  down,  clearly,  and  definitely,  and 
distinctly,  in  so  many  words.  And  I  say  that,  on 
the  former  arguments  of  this  case,  all  these  quest- 
ions were  gone  into,  and  a  great  variety  of  au- 
thorities cited  and  relied  upon.  Your  Honors  will 
find  this  to  be  the  fact,  if  you  take  the  trouble  to 
look  into  the  records,  and  into  the  petition  for  a 
re-hearing, — into  the  arguments  on  the  part  of 
the  Spring  Valley  Water  Company  on  one  occa- 
sion, and  into  the  argument  on  re-hearing,  you 
will  find  all  the  authorities  to  which  I  refer  gone 
into.  And,  as  I  was  about  to  say,  so  well  settled 
is  this  determination,  that  you  cannot  take  up  a 


report  or  a  law-paper  in  relation  to  matters  of 
this  sort,  where  you  will  not  find  it  laid  down  as 
a  matter  fixed  and  unalterable.  During  the 
course  of  this  agumcnt,  on  yesterday  morning,  T 
happened  to  pick  up  the  Pacific  Law  Reporter,  in 
which  was  printed  a  decision  of  the  U.  S.  Court, 
bearing  on  this  question,  the  'opinion  being  by 
Justice  Field.  It  is  a  decision  rendered  at  the 
October  term  of  the  Supreme  Court  —  a  few 
months  ago  —  and  not  yet  reported  in  the  vol- 
ume. That  was  the  case  of  Davis  vs.  Brown 
'&'nl.}  Judge  Field  delivering  the  opinion  of  the 
Court.  It  is  reported  in  the  Pacific  Law  Reporter 
for  May  8th,  1877.  And  he  goes  on  to  discuss 
this  question  of  estoppel  by  judgment,  etc.  He 
says  :— 

"  So  far  as  the  demand  involved  in  the  action 
is  'concerned,  the  judgment  has  closed  all  contro- 
versy; its  validity  is  no  longer  open  to  contesta- 
tion, whatever  might  have  been  said  or  proved  at 
the  trial  against  it.  The  judgment  is  riot  only 
conclusive  as  to  what  was  actually  determined 
respecting  such  demand,  but  as  to  every  matter 
which  might  have  been  brought  forward  and  de- 
termined respecting  it." 

There  is  not  a  single  case  to  the  contrary 
anywhere,  that  has  ever  fallen  under  my  observa- 
tion. The  business  is,  first  to  inquire  and  find 
out  what  were  the  issues;  and  the  judgment  in 
everyone  of  the  cases  is,  that  the  decision  in  the 
particular  case  concludes  forever  between  the 
same  parties,  in  the  same  case,  all  the  questions 
involved ;  and  that  they  can  be  arranged  in  no 
other  form  or  shape.  No  matter  what  might  have 


15 

been  said;  no  matter  what  arguments  might  have 
been  offered;  no  matter  whether  the  decision  was 
correct  or  incorrect;    it  haa  closed  litigation  be- 
tween those  parties.     There  is  no  case  that  holds 
different.     When  you  have  ascertained  what  was 
in  issue,  what  the  record  did  present  for  adjudi- 
cation, what  the  Court  pronounced   upon,  what 
was  the  matter  set  forth,  it  forever  concludes  the 
rights  and  obligations  and   duties  of  the  parties, 
with  respect  to  those  issues  and  records  and  mat- 
ters, in  whatever  shape  they  may  afterwards   be 
sought  to  be  raised,  or  in  whatever  kind  of  pro- 
ceeding an  attempt  may  be   made   to   resist  the 
litigation.     Xow,   if  there   is  one  single  case  to 
be  found   against   that  proposition  —  broad   as  I 
make  it — I  would  like  to  see  it.     And  whenever 
the  issue  is  brought  up,  that  a  matter  has  been 
decided  in  this  way,  it  is  the  adjudicated  duty  of 
the  Court  to  answer  as  to  the  nature  and  charac- 
ter and   scope  of  the  issues  involved;   and   then 
the  judgment  of  the  Court,  in  that  case,  must  be, 
and  will  be,  in  conformity  with  its  prior  decision. 
And  when  an  issue  of  this   kind   is   presented   at 
the  threshold  of  the  argument,  in  such  a  case  as 
this,  the  Court  will   undoubtedly  require  the  par- 
ties who  contend  that  the  matter  has  not  already 
been  settled  to  show  wherein  the  difference  exists, 
what  issues  were  not  legitimately  involved,  what 
points    of   the  judgment    now  sought   were    not 
fairly  within  the  scope  required,  as  submitted  to 
the  judgment  of  the  Court,  and  as  acted  upon  by 
the  Court  in  the  ultimate  decision  of  the  case. 

Now,  I   will   undertake   to   show  your   Hpnp.ni 
that  this  Court  never  would  have  arrived  aj,  t|j& 


16 


conclusion  which  they  announced,  without  passing 
upon  these  matters  now  raised  in  these  cases. 
The  right  now  claimed,  I  say,  was  necessarily 
involved  ;  and  if  the  propositions  that  are  now 
contended  for  by  counsel  are  correct,  the  Court 
would  necessarily  have  arrived  at  a  conclusion 
directly  contrary  to  that  which  they  did  pro- 
nounce. If  the  arguments  that  have  been  sub- 
mitted by  counsel  to  you,  during  this  week,  are 
correct  and  legal,  then  your  judgment  in  the 
former  case  should  have  been  directly  the  reverse 
of  the  conclusion  at  which  you  did  arrive.  I  say 
that  that  is  a  matter  of  necessity,  a  deduction 
which  is  inevitable.  I  speak,  of  course,  of  legal 
necessity  ;  not  of  great  water  necessity.  As  a 
legal  necessity,  the  Court  would  not  have  arrived 
at  the  conclusion  which  they  did,  without  passing 
upon  the  questions  here  involved  ;  and  they  could 
not  have  arrived  at  the  conclusion  which  they 
announced,  and  at  the  same  time  have  admitted 
the  arguments  now  contended  by  counsel  to  be 
correct  and  conclusive. 

And  I  will  undertake  to  show  you  that'they  did 
directly  comment  on  the  very  questions  which  have 
been  raised  here, — that  the  court  did  decide  the 
very  issues  now  before  you. 

The  question  was,  as  to  the  right  of  the  City 
and  County  of  San  Francisco  to  take  water  of  the 
Spring  Valley  Water  Company,  free  of  charge,  for 
all  purposes  which  they  now  claim  to  take  it  free 
of  charge,  and  under  the  same  laws  and  principles 
under  which  they  now  claim  it,  the  same  ordi- 
nances, the  same  provisions  of  legislative  action, 
everything,  in  fact,  which  they  now  spread  upon 


17 


the  pleadings ;  it  was  all  involved  in  the  issues, 
and  insisted  upon  in  the  arguments  then. 

Now  then,  the  very  first  appeal  was  taken  in  the 
case  of  San  Francisco  vs.  Spring  Valley  Water 
Works  Company,  in  the  July  term,  1870.  The 
decision  will  be  found  in  the  39th  of  Gal.,  p.  473. 
The  pleadings  were  almost  identical  with  those 
that  afterwards  came  up  on  the  second  appeal, 
identical  with  those  presented  and  relied  on  in 
their  very  records.  Now,  what  was  the  decision 
of  the  Court  ?  What  was  claimed  at  that  time  ? 
And  what  did  the  Court  decide  in  the  very  first 
opinion? 

The  Court  held  that  the  rights  of  the  parties 
were  not  governed  by  these  provisions  of  law  and 
the  ordinances  in  relation  to  water  works, — the 
San  Francisco  City  Water  Works  Company.  But, 
on  the  contrary,  they  decided  that  the  rights  of 
the  parties  were  governed  by  the  provisions  of 
the  Ensign  Act;  and  they  dispensed  with  all 
these  arguments  in  relation  to  the  San  Francisco 
Water  Works  Company.  And  why?  Because  the 
provisions*  of  the  Act  of  April  8,  1863,  placed 
these  two  companies,  the  Spring  Valley  Water 
Company  and  City  Water  Works  Company,  upon 
a  par.  And  they  decided  that  the  city  would  not 
claim  water  free  at  all,  except  for  the  purposes 
and  within  the  exceptions  and  provisions  set  forth 
in  the  Ensign  Act.  That  was  the  first  decision  of 
this  Court,  upon  a  full  argument  upon  the  entire 
case — an  argument  really  upon  these  ordinances 
and  these  Acts  of  the  Legislature  giving  force  to 
them — because  1  will  attempt  to  show,  before  I 
have  done,  that  they  did  not  have  any  force, 


18 

except  through  the  Acts  of  the  Legislature.  Your 
Honors  decided  that  it  was  beyond  the  power  of 
the  city  council  to  determine  this  matter.  Upon 
an  argument  which  completely  presented  all  these 
issues,  the  Court  takes  up  the  case  and  decides 
that  the  rights  of  the  parties  are  not  governed  at 
all  by  the  rights  of  the  City  Water  Works  Com- 
pany, but  are  to  be  determined  alone  as  growing 
out  of  the  Ensigi  Act. 

That  was  the  decision  of  the  Court,  upon  which 
the  case  went  down,  and  upon  which  there  was  a 
second  trial  in  the  Court  below.  Then  there  was 
a  second  appeal,  the  judgment  being  similar  in 
the  second  trial  to  the  judgment  in  the  first  trial. 

The  first  opinion  which  this  Court  rendered, 
which  has  found  its  way  into  the  records,  was 
given  on  the  IGth  of  July,  1873;  it  is  reported  in 
a  pamphlet  decision  of  this  Court.  The  Court 
decided  that  the  rights  of  these  parties  in  these 
suits  are  still  governed  by  the  Ensign  Act,  and  by 
the  Ensign  Act  alone.  That,  in  consequence  of 
water  having  been  introduced  into  the  City  of 
San  Francisco  by  the  City  Water  W(frks  Com- 
pany on  the  IGth  of  September,  1858,  the  Spring 
Valley  Water  Company  became  liable  upon  that 
event;  and,  under  the  provisions  of  the  third 
section  of  the  Ensign  Act,  it  was  bound  to  fur- 
nish its  quota  for  fire  and  other  municipal  pur- 
poses. Still  holding  that  the  rights  of  the  parties 
depended,  not  upon  these  ordinances,  not  upon 
the  general  law — for  we  have  not  come  to  that 
yet — but  upon  the  provisions  of  the  Ensign  Act, 
that  the  occasion  referred  to  in  that  section  had 
arisen  ;  that,  subsequent  to  the  Ensign  Act,  and 


19 


on  the  16th  of  September,  1858,  water  had  been 
introduced  by  another  company  ;  and,  therefore, 
under  the  last  clause  of  the  third  section  of  the 
Act,  this  other  company  became  liable — -to  do 
what  ?  It  became  liable  to  do  what  that  second 
clause  prescribed  that  it  should  do. 

The  first  clause  provided  that  the  company 
should  only  be  liable  to  furnish  water  for  fires, 
during  the  pendency  thereof ;  but  when  this 
event  happened  ;  when  water  was  introduced  by 
the  new  company,  it  is  provided  that  water  shall 
be  supplied,  not  only  for  fires — a  quota  of  supply 
for  fires— but  for  all  municipal  purposes.  The 
claim  was  made,  or  sustained,  by  virtue  of  that 
provision,  and  that  provision  alone. 

Now,  that  was  the  second  decision  that  was 
made.  That  was  on  the  16th  of  July,  1873. 

A  petition  for  a  rehearing  was  filed.  This 
Court  granted  a  rehearing.  The  case  came  up 
again  for  argument.  It  was  re-argued  again, 
orally  and  in  printed  briefs,  in  1874.  The  case 
was  then  reported  in  48th  Cal.,  p.  493. 

Now  then,  what  was  the  decision  on  this  occa- 
sion ?  That  was  the  third  time  when  this  case 
came  up  for  discussion  before  the  Court  upon  all 
the  questions  involved  in  the  record.  And  we 
say  that  the  case  involved  all  the  questions  that 
appear  in  the  records  here,  with  the  exception  to 
which  I  have  already  alluded.  It  had  been  de- 
cided that  the  rights  of  the  Spring  Valley  Water 
Company  were  to  be  measured,  and  measured 
alone,  by  the  provisions  of  the  Ensign  Act,  the 
third  section  regulating  their  rights,  and  by  no 
other  Act;  that  no  other  proposition  of  law  gov- 


20 


erned  them  ;  that  they  were  controlled  by  no 
other  provision,  statute,  or  ordinance;  but  upon 
all  the  issues  directly  within  the  record,  raised 
and  discussed,  it  was  held  that  their  rights  were 
governed  by  the  third  section  of  the  Ensign  Act. 
It  was  held  that  they  were  liable  to  furnish  their 
quota  of  water,  not  only  for  fire  but  for  all  muni- 
cipal purposes,  without  limit  as  to  the  extent  of 
the  supply,  and  without  right,  presumably,  to 
make  any  charge  therefor. 

Now,  then,  on  this  occasion,  the  Court  took  a 
new  departure.  On  this  occasion  the  Court  held 
that  corporations  can  only  be  formed  under  gen- 
eral laws;  that  the  rights  and  privileges,  duties 
and  responsibilities,  of  corporations,  arise  under 
and  are  governed  by  the  general  law  of  the  land; 
that  the  Legislature  cannot,  by  special  law,  con- 
fer privileges  or  exact  duties  from  existing  corpo- 
rations; and  that  the  rights  and  duties  of  the 
Spring  Valley  Water  Company  must  be  decided 
by  the  general  law  under  which  it  was  organized, 
and  is  under  no  obligation  to  furnish  water  to  the 
city  and  county  free  of  charge,  except  for  fires. 
The  Court  disposed  of  every  issue  in  that  case. 
They  disposed  of  your  City  Water  Works  Com- 
pany ;  of  your  ordinances ;  of  your  contract,  as  it 
was  alleged  or  was  called.  They  set  aside  the  whole 
Ensign  Act;  they  declared  that  it  had  no  applica- 
tion. They  declared  that  you  had  to  look  to  the 
general  law  of  incorporation  for  the  rights  on 
one  side  and  the  duties  on  the  other;  that  the 
rights  and  duties  are  to  be  measured  by  the 
general  corporation  law,  and  by  that  alone ;  that 
the  Legislature  cannot,  by  special  law,  confer 


21 


privileges  on  or  exact  dues  from  existing  corpo- 
rations; that  the  rights  and  duties' of  the  Spring 
Valley  Water  Company  must  be  decided  by  the 
general  law  under  which  it  was  organized,  arid 
that  it  is  under  no  obligation  to  furnish  water  to 
the  city  and  county  free  of  charge,  except  in  case 
of  fires.  (See  pp.  514  and  515  of  48th  Cal.) 

His  Honor,  Judge  Crockett,  entered  into  a  very 
elaborate  discussion  of  the  points  involved  in  the 
case.  And  in  the  decision  in  the  original  case  on 
this  hearing,  and  in  the  decision  on  the  re-hearing, 
we  say  that  the  whole  subject  was  thoroughly 
canvassed  and  all  the  issues  completely  decided. 
In  the  opinion  on  p.  522  of  the  48th  of  Cal.,  the 
Court  holds  that  corporate  powers  cannot  be 
granted,  enlarged,  or  modified  by  special  act,  and 
that  the  introduction  of  water  into  a  city  for  the 
use  of  the  inhabitants  and  the  corporate  authori- 
ties, is  not  a  municipal  purpose,  etc.  The  Court 
decided  that  the  company  is  subject  to  no  duty, 
except  those  prescribed  by  the  Act  of  1858;  the 
duty  being,  to  furnish  water  for  fires  and  other 
cases  of  great  necessit}7. 

The  city  and  county,  dissatisfied  with  the  judg- 
ment, applied  on  petition  for  rehearing,  and  this 
Court  delivers  a  second  opinion  and  judgment  in 
the  premises,  from  which  I  have  made  a  quotation. 

The  Court  comment  upon  the  third  section  of 
of  the  Act  of  April,  1858,  providing  that  all 
privileges  hereafter  granted  for  the  introduction 
of  water  into  San  Francisco  are  granted  to  com- 
panies incorporated  under  this  Act.  It  therefore 
became  a  part  of  the  general  law,  to  which  refer- 
ence was  had  in  the  ultimate  decision  of  the 


22 


case.  Tt  is  explicitly  stated  that  this  general  la.w 
did  not  render  it  incumbent  upon  the  companies 
organized  under  it  to  furnish  free  water  to  the  city 
free  of  charge,  except  in  case  of  fire  or  other 
great  necessity.  And  dwelling  upon  that,  in 
answer  to  the  argument  of  counsel  upon  the 
other  side,  the  decision  was  complete  and  conclu- 
sive. 

The  decision  in  this  case  left  the  Ensign  Act 
unconstitutional.  The  Court  held  that  the  pro- 
vision of  the  Act  on  which  reliance  had  been 
?nade  did  not  have  the  effect  or  authority  which 
was  contended  for  it. 

The  Court  then  take  up  the  position  and  claim 
of  counsel,  that  the  Spring  Valley  Water  Com- 
pany is  liable  to  furnish  water,  etc.,  as  the  suc- 
cessor of  the  San  Francisco  Water  Works  Com- 
pany. And  the  Court  answer  it  and  dispose  of 
that  question  finally.  Under  the  provisions  of 
the  general  law  of  the  22d  of  April,  1858,  there 
is  a  direct  disposition  of  everything  that  is  now 
insisted  upon  as  left  open.  That  is  at  page  527. 

It  was  again  contended,  in  order  to  maintain 
the  Ensign  Act,  that  this  was  a  mere  grant  of 
an  easement.  And  the  Court  goes  on  to  answer 
that  proposition.  The  Court  discusses  the  grant 
of  an  easement  as  contended  for:  not  to  be  a 
grant  of  corporate  rights,  but  only  an  easement 
permitting  the  company  to  lay  pipes,  etc.,  subject 
to  certain  duties.  It  was  there  contended  that 
the  law  did  not  mike  a  grant  of  corporate  rights. 
but  only  the  easement  permitting  the  company 
to  lay  pipes  through  the  city,  subject  to  certain 
duties;  the  question  being  as  to  whether  it  was  a 


23 


grant  of  corporation  power  at  all,  or  a  simple  grant 
of  easement  permitting  them  to  lay  pipes  through 
the  streets  of  the  city,  for  the  purpose  of  convey- 
ing water,  subject  to  the  duties  imposed  upon  the 
easement. 

The  Court,  in  answer  to  that,  say  this:  that  all 
corporations  had  this  right  by  the  general  law;  and 
that  the  only  legal  effect  of  the  Ensign  Act  would 
be  to  impose  duties  and  confer  rights  essentially 
different  from  those  of  other  corporations  under 
the  general  law.     And  they  say  that  this  cannot 
be  done  by  a  special  act.     And    they  go   on  and 
hold  that  such  a  grant  is  purely  a  grant  of  corpo- 
rate power;  that  it  is  not  a  mere  grant   of  ease- 
ment, for  the  company  to   take  advantage  of  by 
laying  their  pipes  through  the  streets  and   carry- 
ing water  for  distribution  to  the  people,  but  that 
it  is  a  direct  right.     This  is  doubly  applicable  to 
the   city  ordinances  which   purport  to  grant  an 
easement  coupled   with   conditions.     They  make 
this  distinction  between  the  rights  of  a  corpora- 
tion under  the  general  law  and  the  rights  of  this 
corporation,  which   they   undertake   to   allow   to 
come  into  the  streets  of  the  City  of  San  Francisco 
with  their   pipes,  and  secure  to  them  rights  and 
privileges  which  no  other  corporation  in  the  State 
could  secure.     This  was  one  of  the  very  provis- 
ions which   your   Honors  relied   upon  and  com- 
mented upon  in  the  Ensign  Act. 

It  was  proposed  to  fix  rates  then,  and  compel 
the  people  to  pay  them  until  the  corporation  shall 
have  released  a  certain  percentage,  irrespective  of 
and  in  addition  to  the  rights  of  all  corporations 


24 


under  the  general  law  of  the  State.  This  Court 
held  that  that  could  not  be  done  by  the  city. 

And  this  cannot  be  done  by  the  city,  any  more 
than  by  the  Legislature.  The  city  cannot  have 
any  powers  that  the  Legislature  itself  does  not 
have.  The  Legislature  could  never  have  passed 
such  a  law,  as  your  Honors  have  held,  under  the 
Constitution.  The  city  knew  that,  and  they  came 
to  the  Legislature  to  have  these  acts  confirmed. 
They  came  to  the  Legislature  to  have  special  acts 
passed  to  confirm  these.  The  only  way  in  which 
they  got  any  authority  whatever,  and  acquire  any 
validity  whatever  for  their  acts,  is  by  virtue  of 
these  statutes  which  confirmed  their  action 
directly. 

This  matter  appears,  not  only  in  a  decision  of 
this  Court  in  the  main  case,  but  in  the  case  of  the 
Truckee  and  Tahoe  Turnpike  Road  Company  vs. 
J.  B.  Campbell,  reported  in  44  Gal.,  pages  90  and 
91  ;  also,  in  the  case  of  Waterloo  T.  R.  Co.  vs. 
Cole,  which  is  not  yet  reported. 

Now,  I  come  to  the  opinion  of  Mr.  Justice 
McKinstry,  upon  which  much  has  been  said.  That 
you  will  find  at  page  530.  In  this  opinion,  the 
learned  justice  agrees  with  the  prevailing  opinion 
delivered  by  Mr.  Justice  Crockett,  and  he  makes 
an  additional  argument  to  sustain  the  proposition 
advanced  by  his  Honor,  Justice  Crockett.  And 
he  contends,  with  great  force  of  reasoning,  that 
the  Legislature  could  not  pass  a  special  Act  grant- 
ing powers  or  privileges  to  a  particular  corpora- 
tion created  under  a  general  law  not  enjoyed  by 
all  corporations  ;  nor  could  the  Legislature  pass  a 
special  Act  limiting  or  burdening  with  peculiar 


25 


conditions  the  rights  or  powers  acquired  by  cor- 
porations from  the  general  law. 

We  are  to  ascertain  the  rights,  privileges,  pow- 
ers, duties,  and  obligations  of  the  Spring  Yalley 
Water  Company  by  reference  only  to  the  general 
law  under  which  it  is  incorporated. 

And  then  he  goes  on  to  comment  on  these  dif- 
ferent rights  of  compensation  as  strengthening 
and  rendering  conclusive  the  argument  which  he 
has  made.  On  this  point,  that  these  rights  or 
impositions  can  not  be  instituted  by  a  special  act 
as  against  or  in  behalf  of  such  corporations;  that 
these  corporations  must  get  their  rights  from  the 
general  law,  if  at  all,  which  secures  the  same 
rights,  duties,  privileges,  responsibilities  and  obli- 
gations to  all  corporations — which  I  will  attempt 
to  show  is  the  true  construction  of  the  Constitu- 
tion, in  another  portion  of  what  I  have  to  say. 

I  need  not  repeat  the  statement  that  this  lan- 
guage is  directly  applicable  to  the  claim  under 
the  City  Water  Works  Company.  I  may  have 
occasion  to  refer  to  that  in  another  portion  of  the 
case. 

Now,  in  the  general  order  of  this  matter,  I 
come  to  this  opinion  of  Mr.  Justice  Rhodes. 
That  will  be  found  on  page  533 — Justice  Rhodes' 
dissenting  opinion. 

While  agreeing  substantially  with  the  argument 
of  the  majority  of  the  Court,  Mr.  Justice  Rhodes 
thinks  that  the  question  did  not  really  arise  upon 
the  record,  as  has  been  stated.  And  he  discusses 
the  case  upon  the  ground  which  is  asserted  by 
Mr.  Justice  Crockett,  in  his  opinion  denying  the 
re-hearing.  He  agrees  to  the  constitutional  argu- 


26 


ment  of  the  majority,  and  thinks  the  question 
does  not  arise  in  the  manner  suggested.  While 
agreeing  with  the  construction  put  by  the  Court 
upon  the  provision  of  the  Constitution,  referred 
to,  he  contends  that  the  proposition  set  forth  is 
not  really  involved  in  the  record.  And  his  dis- 
sent is  placed  upon  that  ground  alone. 

It  would  seem  to  me,  then,  if  your  Honors 
please,  upon  this  brief  review  of  these  opinions, 
that  an  end  is  here  put  to  all  discussion  as  to 
what  he  decided  in  the  case  referred  to. 

The  power  of  the  city  and  county,  and  the 
rights,  duties  and  obligations  of  this  corporation, 
it  would  seem  to  me,  are  clearly  and  definitely 
and  finally  determined  by  the  judgment  of  the 
Court  and  also  by  the  opinions  which  are  deliv- 
ered. 

But  it  seems  now,  if  your  Honors  please,  to 
be  considered  from  a  certain  passage  in  Judge 
McKinstry's  opinion,  that  what  is  a  "great  neces- 
sity" is  left  still  an  open  question  by  this  decision. 
And  that  is  the  only  proposition  upon  which 
could  be  based  a  question  of  this  character — the 
question  as  to  whether  there  was  anything  what- 
soever left  undecided  in  the  judgment  in  that  case 
which  would  permit  the  argument  here  upon  the 
main  points  at  issue.  It  is  contended  that  Judge 
McKinstry  in  what  he  said  withdrew  from  the 
operation  of  this  decision  this  question  as  to  what 
constitutes  "  great  necessity,"  his  opinion  being 
thus  interpreted — one  Judge  dissenting  and  one 
Judge  not  sitting — his  concurrence  operating  to 
make  the  decision  of  the  Court. 

Now  let  us  see  what  that  statement  is. 


27 


On  page  531  of  the  48th  Cal.  you  will  jind  the 
passage.  The  Judge  is  discussing  the  constitu- 
tionality of  the  Ensign  Act;  and  he  says:  "The 
general  law  required  all  water  companies  to  fur- 
nish water  to  the  extent  of  their  means,  and  free 
of  charge,  to  the  city  or  town  to  which  water  was 
conducted,  l  in  case  of  fire  or  other  great  neces- 
sity.' "  Recollect  that  you  are  now  discussing 
the  constitutionality  of  the  Ensign  Act  in  this 
action.  The  Judge  goes  on:  "  I  express  no  opin- 
ion as  to  the  precise  meaning  of  the  phrase  'other 
great  necessity.' " 

And  then  he  goes  on  and  assumes  that  the  con- 
struction given  by  the  Court  on  a  former  appeal, 
when  he  was  not  on  the  bench,  to  the  effect  that 
these  words  did  not  include  every  municipal  pur- 
pose, was  correct.  And  then  he  proceeds  upon 
that  assumption  to  discuss  the  question  which  he 
was  then  mainly  engaged  in  discussing,  to  wit: 
the  constitutionality  of  the  Ensign  Act. 

Now,  may  it  please  your  Honors,  is  there  any- 
thing in  this  to  aid  the  proposition  on  the  other 
side? 

As  I  have  attempted  to  show,  and  as  I  think  I 
am  borne' out  by  the  record,  the  question  was 
necessarily  involved,  discussed  in  the  briefs  and 
in  the  opinions,  and  necessarily  included  in  the 
decision. 

Now,  the  learned  Justice  in  using  this  language 
was  merely  reserving  the  expression  of  his  opinion 
as  to  the  precise  meanings  of  the  words  used;  as 
to  what  causes  and  under  what  circumstances 
these  words  would  be  applicable.  That  he  did 
not  hold  them  applicable  to,  and  bearing  upon, 


28 

the  case  then  before  him,  seems  to  me  sufficiently 
apparent.  That  was  not  a  case  of  great  necessity. 
And  it  was  not  a  case  of  "  other  great  necessity" 
within  the  meaning  of  that  term.  And  therefore 
it  was  not  necessary  for  his  Honor,  the  learned 
Justice,  to  express  an  opinion  as  to  what  cases 
the  term  would  apply  to — as  to  what  cases  that 
term  on  which  he  reserved  would  apply.  He  is 
not,  mind  you,  intimating  any  doubt  or  expressing 
any  want  of  concurrence  in  what  has  been  said 
which  may  bear  upon  the  subject.  And  in  his  judg- 
ment upon  the  case  before  him,  he  was  not  neces- 
sarily called  upon  to  give  an  expression  of  opinion 
as  to  the  proper  definition  or  limitation  for  this 
term,  and  so  in  passing  he  reserved  his  construc- 
tion of  the  words.  In  his  opinion  it  was  not 
necessary,  at  that  time,  for  anybody  to  go  ex- 
plicitly into  a  discussion  of  the  meaning  of  that 
term.  It  was  his  incidental  remark  in  an  opinion 
in  which  he  gave  judgment  in  concurrence  with 
the  majority  of  the  Court.  But  this,  certainly, 
does  not  detract  from  the  significance  or  the  effect 
of  the  judgment  which  was  rendered.  That  judg- 
ment was  expressed  more  particularly  in  the  opin- 
ion of  Mr.  Justice  Crockett  to  which  I  refer. 

Mr.  Justice  McKinstry  says  he  does  not  under- 
take to  go  into  a  discussion  with  respect  to  the 
cases  which  would  properly  come  under  this  term. 

Mr.  Justice  McKinstry  says  that  on  the  prior 
appeal,  and  before  he  came  to  the  Bench,  it  was 
held  by  the  justices  that  these  words  did  not  in- 
clude every  municipal  purpose  ;  and  he  assumes 
that  that  construction  was  correct.  I  understand 
that  by  the  force  of  law  and  reasoning,  he  could 


29 


not  have  concurred  in  that  judgment,  except  he 
based  his  concurrence  on  that  assumption,  unless 
he  believed  that  when  the  Court  were  ascertain- 
ing the  Spring  Valley  Water  Company,  under  the 
Act  of  1858,  the  case  was  not  one  involving  any 
great  necessity.  It  seems  to  me  there  can  be  no 
question  upon  that  subject,  that  that  was  the 
opinion  of  Mr.  Justice  McKinstry.  I  have  not 
heard  him  intimate  other  than  that  or  different  ; 
that  the  opinion  did  not  call  upon  him  to  deter- 
mine what  precise  character  of  case  the  exception 
referred  to  would  be  applicable.  It  certainly  was 
not  necessary  for  him  to  go  into  any  such  con- 
struction or  definition. 

The  Act  of  1858  says  that  you  shall  furnish 
water  to  the  full  extent  of  your  means,  even 
though  it  takes  up  all  the  water  in  your  reser- 
voirs, and  though  it  exhausts  all  your  property, 
you  shall  furnish  it  in  case  of  fire  or  other  great 
necessity.  And  I  think  it  was  absolutely  essen- 
tial, in  order  to  come  to  the  conclusion  at  which 
the  Court  then  arrived,  that  they  should  pass 
upon  the  question  as  to  whether  the  uses  and 
purposes  set  up  in  those  proceedings  were  such 
uses  and  purposes  as  made  a  case  arise  under  the 
exceptions  of  the  Act  of  1858. 

Now,  if  your  Honors  please,  I  have  hurriedly 
gone  over  the  whole  of  these  opinions,  from  the 
first  to  the  last;  and  I  submit  that  it  forecloses 
all  discussion  upon  any  one  of  these  questions 
which  have  been  raised  here,  with  the  exception 
of  the  questions  that  rise  in  the  case  of  the  appeal 
from  the  Fifteenth  District  Court. 


30 


But  I  am  not  going  to  rest,  if  your  Honors 
please,  even  upon  that  proposition.  I  have  some- 
thing to  say  upon  the  question,  if  it  is  open  to 
discussion.  And  I  will  attempt  to  show  that,  if 
the  question  was  open  for  discussion,  it  is  clear 
that  your  Honors  could  not  arrive  at  any  conclu- 
sion; if  it  was  not  foreclosed  by  the  opinions 
which  this  Court  has  already  delivered  on  the 
rights  of  these  parties. 

This  provision  requires  water  corporations  to 
furnish  water  in  case  of  fire  or  other  great  neces- 
sity. Now,  what  is  the  meaning  of  that  phrase 
in  the  connection  in  which  we  find  it?  What 
does  it  mean  ?  If  my  opponents  are  correct  in 
their  construction — if  the  other  side  is  correct  in 
their  proposition  on  this  subject — and  their  whole 
case  depends  upon  its  construction — then  this 
expression  means  and  includes  the  use  of  water 
for  every  and  any  purpose  for  which  the  munici- 
pality can  use  or  desire  to  use  water.  There  is 
no  limit  to  the  extent  of  that  proposition.  You 
cannot  step  be}7ond  this.  All  the  ordinary  pur- 
poses for  which  a  municipality  desires  water,  is, 
and  must  be,  covered  by  the  phrase,  according  to 
a  wise  interpretation.  It  is  all  covered  by  this 
provision. 

The  first  remark  that  would  strike  anyone  in 
reading  this  provision,  and  considering  its  intent 
and  meaning — at  least  the  first  thing  that  would 
strike  me — would  be:  What  was  the  necessity  of 
this  provision  at  all,  if  the  object  was  to  include 
every  possible  use  of  water  ?  Why  did  not  the 
Legislature  say  at  once,  and  that  in  very  plain 
and  definite  language  that  admitted  of  no  mis- 


31 


construction  and  no  mistake,  that  water  should 
be  furnished  by  the  corporation  to  the  city  and 
county,  without  compensation — free  of  cost — for 
all  municipal  purposes  whatever?  Why  should 
they  pervert  language,  and  use  language  which 
presupposes,  upon  the  very  face  of  it,  that  there 
were  purposes  for  which  water  was  not  to  be  fur- 
nished free  of  compensation  ?  I  say  that  the  very 
language  itself  presupposes  that. 

Certainly  it  was  in  the  mind  of  the  Legislature, 
when  they  used  that  language,  that  there  were 
purposes  for  which  water  was  not  to  be  fur- 
nished to  municipal  corporations  or  municipal 
bodies  without  compensation  ;  and  the  question 
is :  What  are  those  purposes  ?  The  companies 
are  to  furnish  water  free,  in  case  of  fire  or  other 
great  necessity. 

One  would  suppose  that  the  connection  in 
which  a  term  is  used,  gives  character  and  mean- 
ing to  it  ;  certainly  where  there  is  anything 
doubtful  about  it.  It  has  always  been  so  held, 
in  all  cases  of  this  kind.  They  are  to  furnish 
water  free,  in  case  of  fire  or  other  great  necessity. 
A  case  of  fire  is  an  unforeseen  thing.  Tt  is  a 
sudden  calamity  which  may  happen  at  any 
time.  It  is  fortuitous  ;  it  may  happen  and 
endanger  the  public  safety  at  any  time.  There- 
fore, it  immediately  strikes  the  mind  of  the 
Legislature,  in  passing  this  law.  that  this  kind  of 
provision  should  be  made  for  it.  And  it  is  at 
once  provided  for.  Fire  is  regarded  as  a  great 
and  overpowering  necessity,  for  which  the  excep- 
tion of  the  use  of  the  property  of  the  company, 
without  charge,  is  made  imperative.  Fire  en- 


32 


dangers  the  property  of  the  public.  The  lives 
and  property  of  the  citizens  of  a  town  are  im- 
perilled by  it.  And  the  legislators  wisely  said  : 
We  will  enact  that  the  corporations  organizing 
under  this  law,  for  the  purpose  of  procuring  sup- 
plies of  water  to  the  inhabitants  of  the  various 
municipalities,  shall  give  this  tribute  of  their 
property  when  occasion  demands.  The  provision 
was  industriously  inserted  into  the  statute.  But 
then  there  may  be  other  occasions  which  may  re- 
quire the  application  of  the  same  precaution — in- 
definite, sudden,  unforeseen,  exceptional — against 
which  the  public  should  be  protected  ;  and  the 
provision  is  made  also,  that  these  cases  should  be 
provided  for  in  the  same  manner.  Therefore,  the 
case  is  made  broad  enough  to  cover  similar  unfore- 
seen dangers.  But  that  you  can  stretch  the  ex- 
pression beyond  this,  to  cover  the  ordinary  pur- 
poses for  which  the  municipal  body  may  desire 
water,  seems  to  me  preposterous  and  altogether 
out  of  the  question.  It  is  against  reason,  and 
against  common  sense. 

I  do  not  care  now  to  enter  upon  a  certain  con- 
versation which  took  place  between  one  of  the 
Justices  of  the  Court  and  Mr.  Swift  in  relation 
to  this  question.  I  have  it  upon  my  notes,  and 
may  allude  to  it  hereafter. 

There  were  one  or  two  cases  cited  here,  and 
read  over,  which  did  not  seem  to  me  to  have  very 
much  bearing  upon  the  question.  -I  think  you 
can't  find  much  authority  on  a  question  exactly 
like  this;  because  it  depends  upon  the  plain 
meaning  of  the  provision  itself — upon  its  own 
language,  and  the  connection  in  which  you  find 


33 


that  language,  and  the  general  object  and  purpose 
which  was  manifestly  in  view  by  the  Legislature 
enacting  the  statute. 

The  case  of  Mills  vs.  Barbour,  reported  in  the 
24th  Wendell,  seems  to  me  to  bear  somewhat 
directly  on  the  matter  under  consideration. 

That  was  an  action  to  recover  rent  upon  a  lease. 
The  lease  contained  an  exception  to  its  operation 
in  case  of  fire  or  other  casualty.  The  fact  is, 
that  the  term  here — "  in  case  of  fire  or  other 
great  necessity "  —  means  precisely  that  very 
thing — upon  the  casualty  of  fire  or  other  great 
necessity.  Then,  in  that  case,  water  was  to  be 
furnished  free,  and  the  case  of  fire  is  to  be  car- 
ried, for  the  sake  of  interpretation,  to  other  cases, 
or  cases  of  necessity — great  necessity.  In  case  of 
fire,  or  in  case  of  other  great  necessity.  That  is  to 
say,  upon  a  casualty  of  fire  or  upon  any  other  like 
casualty  of  great  necessity.  Then,  and  in  that 
event,  the  Legislature  will  put  this  duty  upon 
this  creature  of  legislative  power.  The  Legisla- 
ture will  make  this  creature,  under  the  law  of 
its  creation,  contribute,  in  cases  of  great  public 
danger,  to  the  protection  of  the  public — the  pro- 
tection of  that  public  for  whose  uses  they  are  em- 
powered to  make  these  supplies  of  water.  It  was 
the  very  object  and  purpose  of  this  statute — of 
this  particular  section  and  clause — as  I  shall 
attempt  to  show;  and  they  never  could  have 
thought  of  going  further  than  that,  I  am  cofi- 
dent,  under  any  judgment  of  good  sense  and  fair 
reasoning. 

Now,  the  provision  in  the  question  in  the  case 
referred  to  was  made  an  exception  in  the  lease. 


34 


Then,  and  in  such  an  event,  the  party  was  not  to 
pay  any  rent  at  all.  The  exception  was  from  the 
operation,  or  the  happening  of  fire,  in  case  of  fire 
or  other  casualty.  Here  the  words  are,  "  In  case 
of  fire  or  other  great  necessity." 

The  difference  was,  that  the  city  had  cut  down 
and  taken  part  of  the  premises  for  a  public  street; 
and  it  was  contended  that  this  fell  within  the  ex- 
ception, and  should  relieve  the  party  from -paying 
rent.  But  the  Court  held  that  it  was  not  within 
the  exception.  And  the  Court  say — that  which, 
it  seems  to  me,  must  strike  anybody  with  great 
force — which  any  one  would  say,  I  think,  in  the 
consideration  of  such  a  question — the  Court  say 
that  the  term,  "  other  casualty,"  refers  to  some 
fortuitous  interruption  of  the  use.  "  This  is 
clear,  not  only  upon  the  import  of  the  words,  but 
from  the  connection  in  which  they  are  found. 
No  casualty  has  occurred ;  on  the  contrary,  what- 
ever has  taken  place  has  been  in  pursuance  of 
established  law.  and  might  have  been,  and  proba- 
bly was,  anticipated."  Such  is  the  language  of 
the  Court  in  that  case. 

It  seems  to  me  that  this  reasoning  applies,  with 
overwhelming  and  conclusive  force,  to  the  case  in 
hand.  Should  not  the  Legislature  have  antici- 
pated that  the  municipal  government  would  want 
water  for  a  thousand  purposes?  ordinary  munici- 
pal purposes  ?  Why  resort  to  such  expressions,  if 
it  was  simply  intended  that  all  municipal  wants 
of  water  should  be  provided  for?  Did  not  the 
Legislature  know  that  the  city  government  could 
not  be  carried  on  without  water  ?  Did  not  the 
Legislature  know  that  the  municipality  officers 


35 


could  not  perform  the  great  duties  devolving  upon 
them  as  a  branch  and  arm  of  the  State  government, 
without  a  supply  of  water?  and  that  required 
daily  for  the  purposes  of  the  municipality  ?  Could 
it  be  pretended  that  such  a  want  might  not  be, 
and  should  not  be  anticipated  ?  and  that  there- 
fore it  could  by  no  manner  of  means  fall  within 
the  phrase,  in  such  a  connection,  "  other  great 
necessity  ? "  Water  is  needed  to  protect  the  pub- 
lic interests  in  innumerable  ways;  to  carry  on  the 
operations  of  the  government  ;  for  the  immediate 
supply  of  the  officials  of  the  municipality, "and 
those  under  their  charge  in  the  various  institu- 
tions of  the  city.  Are  not  these  wants  notorious  ? 
and  such  as  every  legislator,  however  stupid  or 
unobservant,  must  take  full  notice  of?  How  can 
the  gentlemen  claim  that  such  ordinary  wants  for 
such  an  indispensable  article,  are  to  be  classed 
under  this  term  used  in  such  a  connection,  always 
remembering  that  the  very  sentence  itself  directly 
presumes  the  contrary. 

So  in  the  case  of  Bigelow  vs.  Collamore,  in  the 
5th  Gushing,  227,  there  was  a  very  similar  excep- 
tion in  the  lease.  It  provided  for  loss  from  fire 
or  other  unavoidable  casualty  —  relieving  the 
party  from  the  payment  of  any  rent  in  such  an 
event.  It  was  the  case  of  a  mill  rented  or  leased. 
The  lease  contained  an  exception,  relieving  the 
party  from  his  liability  and  responsibilities  under 
the  lease  in  case  of  loss  from  fire  or  other  una- 
voidable casualty.  The  mill  broke  down  because 
the  walls  were  rotten.  They  had  been  in  use  for 
a  long  time,  and  had  become  infirm  and  rotten, 
and  it  was  contended,  in  that  case,  that  thisdisas- 


36 


ter  came  within  the  exception,  "  unavoidable 
casualty."  But  the  Court  say  that  this  is  not 
within  the  exception  at  all.  The  Court  say  that 
this  is  not  an  unavoidable  casualty ;  it  could  have 
been  anticipated  and  provided  for.  It  did  not 
fall  within  the  meaning  of  these  terms;  their  ob- 
ject and  intention  and  purpose  being  to  meet  a 
totally  different  condition  of  affairs — an  entirely 
different  character  of  loss  or  calamity.  That 
exception  was  to  guard  against  those  events  which 
could  not  be  anticipated.  You  could  not  antici- 
pate fire,  and  that  was,  therefore,  provided  for. 
You  cannot  anticipate  some  other  great  calamities 
or  convulsions  when  the  public  safety  would  be 
endangered. 

During  the  course  of  this  argument,  if  your 
Honors  please,  the  question  has  been  asked  sev- 
eral times,  Can  you  state  any  other  instance  of 
great  necessity?  Can  you  give  any  other  illus- 
trations, or  any  illustration,  beyond  the  case  of 
fire?  I  think  I  could  state  many  such  occasions. 
in  which  the  exception  here  would  be  binding 
upon  the  company.  I  don't  think  there  need  be 
any  apprehension  that  the  argument  would  fail, 
on  our  side,  because  of  incapacity  to  enumerate 
other  great  necessities  which  legitimately  come 
under  that  language  used  in  that  connection. 
I  can  suggest  many  such  occasions.  I  might 
suggest  occasions  where  the  public  safety  would 
be  endangered  by  sudden  plague— by  cholera, 
or  other  sweeping  pestilence.  There  are  a  thou- 
sand other  ills  to  which  a  community  is  liable, 
which  might,  in  their  violence  and  sweeping 
character,  demand  the  absolute  and  entire  use 


37 


of  the  property  of  this  company,  for  the  cleans- 
ing and  saving  purposes  of  the  whole  comma 
nity.  I  think  there  would  never  be  any  ques- 
tion, when  such  occasion  arose.  Indeed,  the 
company  has  never  evinced  any  disposition,  nor 
has  it  any  disposition,  to  avoid  the  expense  de- 
volving upon  it  legitimately  under  this  phrase. 
There  might  be  enumerated  a  large  number  of 
cases  of  casualty  and  great  necessity,  where  the 
municipality  has  need  to  use  large  quantities  of 
water  in  order  to  protect  the  lives  and  property 
of  the  public,  where  there  could  be  no  possible 
question  as  to  the  duty  of  the  company  to  open 
their  hands  to  the  fullest  extent. 

And  you  will  remark  that,  in  order  that  this 
company  may  be  able  to  meet  precisely  such  great 
cases  of  public  necessity  and  casualty,  they  have 
another,  and  if  you  please,  an  incidental  right  to 
protection  under  the  law.  Not  that  it  is  precisely 
any  argument  in  their  behalf ;  but  every  citizen 
is  interested  in  maintaining  the  integrity  and 
power,  for  beneficent  purposes,  on  the  part  of  this 
corporation,  whenever  the  hour  of  great  public 
calamity  requiring  its  resources  shall  have  arrived. 

And  it  was  to  guard  against  these  great  cases  of 
public  danger,  that  this  clause  was  added  to  the 
provision  for  a  full  supply,  free  of  cost,  in  times 
of  fire.  The  supply  is  to  be,  at  times  of  fire,  and 
on  other  occasions  of  great  necessity.  It  was 
eminently  right  and  proper  that  the  Legislature 
should  burden  these  privileges  with  this  obliga- 
tion, and  contribution  for  the  public  protection. 
And  the  selfish  considerations  of  the  members  of 
the  corporation  itself  would  have  demanded  such 


38 


a  provision  in  its  general  organic  law.  But  when 
you  come  to  talk  of  taking  the  property  of  this 
company  for  the  uses  of  the  city — for  the  ordinary 
purposes  of  the  municipality — free  of  compensa- 
tion, as  a  taking  under  this  clause,  you  are  talking 
very  di.'lerent  matter. 

The  construction  contended  for,  is  to  deprive 
the  language  of  all  meaning,  and  to  defeat  the 
very  intention  and  object  of  the  provision.  It  is 
to  impute  to  the*  Legislature,  in  using  language 
sufficiently  definite  and  clear  to  effect  the  object 
in  view — the  design  to  take  from  all  such  cor- 
porations their  entire  property,  if  necessary,  and 
apply  it  to  the  ordinary  public  uses  of  the  city 
and  county,  without  compensation.  A  contradic- 
tion'upon  contradiction!  an  assumption  of  intel- 
ligence on  the  part  of  the  Legislature,  and  of 
honest  purpose,  and  at  the  same  time  of  its  sinis- 
ter and  revolutionary  disposition.  Altogether,  it 
is  incredible.  In  short,  you  suppose  a  system  of 
legalized  plunder,  and  that  under  the  most  aggra- 
vating circumstances. 

Counsel  have  indulged  in  elaborate  and  abusive 
diatribes  against  the  Spring  Valley  Water  corpor- 
ation, which  simply  seeks,  at  the  hands  of  a  Court 
of  law,  a  determination  what  are  its  rights  of 
property,  what  are  the  claims  which  the  city 
government  can  properly  and  legally  maintain— 
proposing  to  be  governed  by  that  decision. 

Now,  I  cannot,  for  the  soul  of  me,  perceive 
upon  what  reason  or  principle  or  ordinary  rule  of 
construction,  this  question— if  it  is  now  an  open 
question— can  be  determined  by  any  other  decis- 
ion than  the  one  at  which  you  have  already 


39 


arrived :  the  decision  that  cases  of  this  character 
are  not  within  the  exception  of  the  law.  not 
covered  by  the  provisions  of  the  statute. 

Now,  if  your  Honors  please,  I  could  not.  if  I 
was  to  talk  a  month,  put  before  you  my  views 
any  plainer  than  I  have  done;  that  this  provision 
is  simply  and  manifestly  intended  to  work  this 
result:  that  all  corporations,  that  all  companies 
allowed  to  be  incorporated  for  the  purpose  of 
bringing  water  into  a  city,  for  the  purpose  of  dis- 
posing of  it  to  the  citizens  thereof,  shall,  in  time 
of  great  public  danger,  contribute  to  the  protec- 
tion of  the  public  which  gives  them  their  rights. 
And  you  can  make  no  more  out  of  it.  It  seems 
to  me  that  every  simple  statement  of  facts,  every 
honest  proposition  in  the  premises,  every  legal 
argument  on  the  subject,  tends  directly,  with  any 
fair  mind,  to  that  conclusion.  And  I  cannot  waste 
your  time,  or  weary  myself,  with  any  further 
attempt  at  argument,  or  any  continued  endeavor 
to  make  this  matter  plainer  from  my  stand-point, 
than  I  have  done  up  to  the  present  moment.  I 
am  sure,  that  if  it  is  not  clear  to  your  Honors, 
that  I  am  correct  in  these  views,  more  must  be 
due  to  the  infirmity  of  my  statement,  than  to  any 
inherent  defects  in  my  cause. 

His  Honor,  Judge  McKinstry,  asked  Mr.  Swift 
to  say  what  were  the  limitations  upon  this  power 
of  demand,  if  there  were  any.  And  what  was 
his  reply  ?  Why,  Mr.  Swift  says  that  the  public 
baths  and  ornamental  purposes,  like  fountains, 
might  be  within  the  meaning  of  the  exception. 
Where  does  he  get  the  authority  for  that  ?  Who 
is  to  judge  of  that — the  city  authorities?  Accord- 


40 


ing  to  this  theory  the  city  authorities  are  the 
judges,  and  their  determination  is  final  and  con- 
clusive. That  is  the  practical  effect  of  his  argu- 
ment. They  are  to  determine  what  is  absolutely 
necessary,  or  otherwise,  for  the  public  use.  But 
where  is  the  law  making  them  an  umpire  in  such 
a  case  ? 

Accept  their  decision,  and  look  at  it.  There 
would  be  no  escape,  then,  from  the  authority  in 
the  other  cases  which  he  would  enumerate,  under 
his  charitable  disposition.  For  the  city  authori- 
ties may  determine  that  public  baths  are  abso- 
lutely essential  for  the  public  health.  And  the 
moment  they  make  that  determination,  according 
to  his  theory,  water  for  such  an  object  is  included 
among  the  great  necessities.  I  think  there  is  no 
limit  to  their  demand,  on  such  theory.  It  is 
either  one  thing,  or  the  other.  The  law  either 
gives  the  city  government  absolute  control  of  the 
resources  of  the  water  company,  for  every  pur- 
pose which  they  may  determine  proper  or  neces- 
sary, or  there  is  some  reasonable  restriction  in 
the  premises,  indicated  in  the  language  which  we 
have  so  often  quoted.  According  to  my  friend's 
theory,  there  is  no  escape  from  the  conclusion 
that  this  company  is  bound  to  give  water  for  pub- 
lic baths,  and  even  for  its  fountains,  if  the  city 
authorities  so  determine,  even  though  it  took  the 
whole  property  of  the  corporation. 

Now,  if  your  Honors  please,  I  do  not  propose 
to  say  much,  if  anything,  further,  upon  this  sub- 
ject of  what  constitutes  other  great  necessity. 
But  I  propose  to  submit  some  other  considera- 
tions which,  it  would  seem  to  me,  upon  general 


41 


constitutional    principles,    aid    this   argument,   if 
they  do  not  render  it  conclusive! 

I  think  I  could  defend  the  decision  made  here 
in  this  old  case,  successfully,  upon  grounds  which 
do  not  apply,  or  which  are  not  assumed,  in  the 
discussion  on  that  case.  I  do  not  propose  to 
assume  directly — although  I  think  I  could  main- 
tain it  with  great  plausibility,  to  say  the  least  of 
it — that  the  State,  and  much  less  a  subordinate 
body,  has  no  power,  under  the  Constitution,  to 
take  private  property  without  compensation,  un- 
der the  guise  or  pretense  of  the  incorporation 
law,  or  under  the  pretense,  by  the  city,  of  the 
exercise  of  the  same  power,  secured  by  law,  to 
permit  a  corporation,  organized  under  the  general 
law  for  the  purpose  of  supplying  a  city  with 
water,  to  enter  and  supply  such  city  or  its  inhab- 
itants, in  pursuance  of  its  charter  and  corporate 
rights,  to  carry  out  its  purposes,  to  fix  conditions, 
to  exact  dues  and  to  give  privileges,  beyond  and 
different  from  those  attaching  to  all  corporations 
organized  under  the  same  general  law.  And  this 
by  the  simple  subterfuge  calling  such  ordinances, 
adopted  and  enforced  by  special  Acts  of  the  Legis- 
lature, contracts — as  a  contract.  For  I  think  it 
is  perfectly  clear  that  the  city  has  no  power  to 
grant  such  franchises;  and  that  these  ordinances 
did  attempt  to  grant  franchises;  and  that  they 
therefore  applied  to  the  Legislature  for  a  special 
law  to  confirm  their  action.  I  think  it  is  clear 
that  these  ordinances  were  originally  void,  and 
that  they  are  no  better  from  the  action  of  the 
Legislature.  The  cases  which  I  have  cited  would 
seem  to  go  directly  to  that  point.  I  am  now 


42 

speaking  incidentally,  in  relation  to  the  proposi- 
tion I  am  advancing  upon  these  ordinances. 

There  is  another  portion  of  the  Constitution, 
if  your  Honors  please,  which,  it  seems  to  me,  has 
a  direct  bearing  on  a  subject  to  be  considered  in 
connection  with  this  other  proposition  which  I 
shall  advert  to  in  a  moment.  That  is,  that  while 
private  property  cannot  be  taken  for  public  uses 
without  due  compensation,  it  cannot  be  taken  at 
all  for  private  use,  upon  any  terms,  without  satis- 
factory and  freely  accepted  compensation.  It 
cannot  be  taken  for  private  uses,  against  the  con- 
sent of  the  owner,  with  or  without  consideration. 
There  is  no  power  to  take  private  property,  for 
private  uses,  under  any  circumstances,  or  for  any 
consideration ;  they  cannot  take  it  for  public  uses 
without  just  compensation. 

Now,  this  constitution,  as  a  matter  of  course,  is 
to  be  construed  as  a  whole,  and  each  provision  is 
to  be  construed  with  reference  to  every  other 
provision;  one  may  qualify  and  limit  and  restrain 
the  generality  of  the  others;  they  are  to  be  taken 
altogether — they  are  to  be  construed  together. 

Now,  the  constitution  says  that  the  Legislature 
may  provide,  by  general  law,  for  incorporations — 
for  public  and  private  incorporations  ;  they  may 
provide,  by  special  law,  for  municipal  corpora- 
tions. Now  then,  in  the  exercise  of  that  power, 
can  the  Legislature  provide  that  all  corporations — 
for  it  must  be  for  all,  or  for  none — that  all  corpora- 
tions, for  every  purpose  of  trade  or  commerce,  for 
every  kind  of  business,  must  give  the  whole  of  its 
property  to  the  use  of  the  State,  or  any  subordi- 
nate subdivision  of  the  State,  without  coinpensa- 


43 


tion  ?  Would  anybody  contend  that  that  could 
be  done,  in  so  many  words  ? — that  that  could  be 
done  by  legislation  directly?  Make  it  a  condition 
of  the  creation  of  the  corporation  that  they  could 
exact  from  the  corporation,  for  public  uses,  all  of 
its  property  to  the  extent  of  its  production  —  the 
whole  of  its  means,  for  public  uses,  without  any 
compensation.  Can  it  annex  such  a  condition  as 
that  to  the  privilege  of  being  an  incorporation 
under  the  general  law? 

Now,  it  seems  to  me  that  it  is  perfectly  obvious, 
if  this  can  be  done  by  the  Legislature,  under 
these  constitutional  provisions,  it  can  go  to  any 
extent — even  to  the  extent  of  taking  the  whole 
property  of  the  corporation  for  public  uses.  In 
any  given  event  they  can  take  for  public  uses  the 
entire  production  of  any  incorporation  organized 
under  the  general  laws  of  the  State.  Now,  in  this 
very  case  it  goes  to  that  extent.  Take  this  very 
case.  Not  only  is  the  corporation,  by  the  provis- 
ion of  the  law,  required  to  furnish  water  to  the 
extent  of  its  means  in  case  of  fire  or  other  great 
necessity,  but,  according  to  the  construction  of 
the  learned  gentleman,  the  city  might  now  go  to 
that  extent,  under  the  term  "  other  great  neces- 
sity," to  demand  its  entire  production  for  munici- 
pal purposes!  The  corporation  must  furnish  to 
the  full  extent  of  its  means,  for  all  the  ordinary 
purposes  of  the  city,  without  stint,  without  limit! 
It  is  perfectly  obvious  that  such  a  construction 
would  give  to  the  city  the  legal  right  to  take  the 
entire  production  of  the  corporation  and  apply  it 
to  the  uses  of  the  city,  without  compensation,  in 
direct  violation  of  the  accompanying  constitu- 
tional provisions  to  which  I  have  referred. 


44 


Now,  then,  could  it  ever  have  been  intended 
by  the  Legislature,  in  the  exercise  of  its  powers 
of  incorporating  by  general  law,  to  concede  that 
power  in  any  case  ?  Or  was  it  ever  the  intent  of 
the  Legislature  to  annex  that  kind  of  condition  to 
the  incorporation  of  water  companies  alone. 

For,  mark  you,  according  to  the  theory  ad- 
vanced here,  under  the  glitter  of  the  flowing  exor- 
dium of  the  counsel,  this  provision  is  made  applic- 
able to  water  companies  alone,  and  no  other  cor- 
porations in  the  State. 

The  Legislature  has  never  attempted  anything 
of  the  kind  before.  In  relation  to  no  incorpora- 
tion for  any  purpose  whatever,  or  for  any  busi- 
ness whatever,  or  for  any  object  whatever,  within 
the  power  of  the  Legislature  to  incorporate,  have 
ever  they  attempted  to  do  any  such  thing  before. 
This  is  the  first  instance  ;  and  not  only  is  it  the 
first  instance  here,  but  there  does  not  exist  such 
an  instance  in  all  the  laws  in  all  the  States  in 
the  Union.  Nor  in  England,  nor  anywhere 
else,  can  there  be  found  a  law  of  like  provis- 
ions, or  conferring  like  privileges,  or  like  au- 
thority of  execution  or  restriction  !  That 
the  Legislature  can  annex  as  a  condition  to 
the  right  to  exist,  a  provision  that  a  cor- 
poration shall  have  its  entire  products  at  the  call 
of  the  municipality  in  any  case  where  it  may 
assume  there  is  a  prevailing  want  or  a  great  neces- 
sity. Assuming  this  power,  under  the  general 
law  of  incorporation  in  the  State  of  California  ! 
Annexing  as  a  condition  to  an  act  of  incorpora- 
tion, the  destructive  power  of  appropriating  the 
whole  property,  to  be  used  without  compensation  ! 


45 


I  say  that  the  wants  of  this  city  may  swallow 
up  all  the  waters  that  this  company  can  bring  into 
this  municipality.  And  if  this  city  may  do  it  in 
supplying  what  are  termed  the  ordinary  uses  of 
the  municipality,  then,  as  the  counsel  contends, 
there  is  the  authority  for  making  such  confisca- 
tion. Why,  the  great  park  alone  would  swallow 
up  all  the  water  that  any  company  could  produce 
from  this  peninsula.  It  would  swallow  up  all  the 
sources  of  water  on  the  San  Francisco  peninsula. 
And  yet  the  city  authorities  can  do  this,  accord- 
ing to  the  construction  of  the  learned  counsel  on 
the  other  side  !  Why,  they  are  attempting  to  do 
it  now,  by  these  ordinances  and  these  resolutions. 
The  very  object  is  to  compel  this  corporation  to 
permit  them  to  tap  their  pipes  all  over  the  city, 
and  take  therefrom  water  for  the  public  parks  and 
for  all  the  ordinary  purposes  of  the  municipal 
government. 

The  claim  is  made  explicitly.  They  go  on  to 
say,  that,  if  they  are  not  permitted  to  do  this, 
under  the  plea  of  great  necessity,  the  trees  in  the 
park  will  perish.  And  they  claim  that  they  can 
take  all  the  water  that  is  necessary  to  preserve 
the  vegetation  of  the  public  grounds.  Then  they 
can  take  all  the  waters  of  the  reservoirs  of  this 
company  and  sink  it,  day  by  day  in  the  thirsty 
and  unappeasable  sands  of  the  great  park  ;  and 
thus  deprive  the  corporation,  by  the  operation 
of  law,  by  the  very  law  of  its  creation,  under 
the  exercise  of  this  power  which  is  claimed,  of 
every  drop  of  water  which  they  can  produce  ; 
using  the  reservoirs  and  pipes  and  all  the  paraph- 
ernalia of  the  corporation — if  I  may  use  such  a 


46 


term — for  purposes  of  the  character  which  I  have 
indicated,  and  all  under  the  term,  used  in  connec- 
tion with  public  conflagrations,  "  other  great 
necessity  !  "  It  seems  to  me  that  the  statement  of 
these  facts  is  sufficient  to  refute  the  theory  and 
the  argument  of  the  counsel. 

The  theory  and  argument  and  action  goes  fur- 
ther than  this.  It  is  alleged  that  it  is  a  crime 
upon  the  part  of  any  agent  of  a  corporation  to  put 
the  slightest  obstruction  in  the  way  of  the  exercise 
of  this  power  in  the  manner  which  we  have  sup- 


Any  candid  and  serious  consideration  of  this 
subject,  it  seems  to  me,  must  bring  us  to  put  a 
definite  limit  upon  the  wild  and  wasteful  and 
extortionate  propositions  of  the  counsel  towards 
this  company. 

Now,  then,  it  is  not  necessary  for  us  to  go  to 
the  length  of  maintaining  the  proposition  that 
such  a  provision,  inserted  in  the  general  corpora- 
tion law,  would  be  unconstitutional  and  void, 
although  1  firmly  believe  it.  But  we  say  we  may 
appeal  to  this  kind  of  considerations  in  attempt- 
ing to  arrive  at  what  the  Legislature  meant  when 
they  used  this  term,  "  in  case  of  fire  or  other  great 
necessity."  Did  they  mean  to  go  to  the  length  of 
announcing  that  which  necessarily  leads  to  such 
conclusions? — to  the  length  that  leads  to  the 
conclusion  that  the  entire  property  of  every  cor- 
poration in  the  State  may  be  taken  for  public 
uses,  without  compensation,  and  that  it  is  crimi- 
nal to  resist  the  taking?  Yes!  and  even  criminal 
to  come  into  the  courts  of  law  and  ask  a  decision 
upon  their  rights,  and  determine  upon  questions 


47 


so  grave  and  important,  which  involve  the  very 
existence  of  the  incorporation  itself ! 

Why,  in  these  cases  of  fire  or  other  great  ne- 
cessity, the  very  corporation  itself  is  in  danger. 
Conflagrations  destroy  cities.  They  sweep  out  of 
existence  a  whole  city  in  an  hour.  And,  though 
unforeseen  as  a  fact,  such  overwhelming  disaster 
can  be  anticipated  by  the  Legislature  in  precisely 
•such  a  case.  Fires  are  extinguished  by  water. 
The  history  of  the  country  made  the  Legislature 
to  know  that  these  conflagrations  were  continu- 
ally happening  and  bearing  away  upon  the  winds 
of  heaven  or  flinging  into  the  dust  of  the  earth 
all  that  years  of  industry  had  built  up.  For  the 
great  public,  and  for  the  greatest  good  of  all  the 
public,  it  was  pre-eminently  proper  that  this 
provision  should  be  inserted  in  a  law  pro- 
viding for  the  incorporation  of  companies  whose 
business  it  should  be  to  introduce  water  into 
the  municipalities  of  the  State.  It  was  a  simple 
recognition  of  a  great  and  lamentable  fact, 
ever  recurring  in  the  history  of  the  world ;  and 
they  provided  for  it.  But  they  could  not  antici- 
pate all  these  other  sudden  great  emergencies — 
some  of  them  hardly  less  disastrous  events;  and 
therefore  they  were  not  named  ;  but  they  are 
placed  under  this  phrase,  "  other  great  necessi- 
ties." They  could  anticipate  other  great  necessi- 
ties like  those — similar  to  those  which  exist  in 
times  of  conflagration.  And  the  Legislature  in- 
tended to  provide  that  this  corporation  should, 
in  those  great  times  of  public  danger,  contribute 
of  its  means,  temporarily,  to  the  extent  of  its 
means,  to  save  the  public;  but  not  any  other 


48 


case;  not  in  any  other  event.  I  think  it  is  of 
these  great  necessities  which  I  have  indicated, 
that  this  law  speaks  with  the  emphasis  of  exac- 
tion. And  I  think  that  a  simple,  reasonable,  ordi- 
nary, fair,  obvious  interpretation,  will  meet  this 
case  fully  on  the  ground  where  the  corporation 
now  places  it. 

Mr.  Justice  RHODES.  And  in  all  those  cases 
without  compensation. 

Mr.  HOGE.  Without  compensation.  I  do  not 
expect,  your  Honor,  to  deny  or  to  discuss  the 
proposition  that  the  Legislature  could  take  the 
entire  property  of  an  incorporation  in  these  cases 
of  great  public  necessity.  I  do  not  expect  to 
hedge  about  the  proposition  with  any  technicali- 
ties or  qualifications,  because  this  corporation 
has  not  seen  fit  to  do  so,  and  would  not  support 
me  in  making  any  such  attempt.  This  corpora- 
tion has  always  been  willing  and  ready  to  contrib- 
ute, to  the  uttermost  of  its  means,  for  the  public 
safety.  They  have  not  raised  that  question  here. 
They  have  not  sought  to  make  any  nice  discrimi- 
nations. It  has  been  admitted  at  all  times,  by 
this  corporation,  that  the  Legislature  had  the 
right  to  require  that,  in  these  times  of  great  pub- 
lic danger  and  peril,  the  full  production  from  the 
sources  of  water  supply  should  be  at  the  service 
of  those  officers  of  the  municipality  who  had  the 
public  interests  at  that  time  in  charge.  Although 
we  might,  indeed,  say  that,  under  some  circum- 
stances, it  would  be  unjust — although  we  might 
say  that  there  should  be  specific  boundaries  fixed 
for  the  exercise  of  discretion  in  such  cases.  But 
it  has  not  been  so  said  by  this  corporation.  An 


49 


entire  willingness  to  contribute  their  entire  pro- 
duction, in  case  of  fire  and  other  great  necessity, 
has  always  been  manifested.  They  recognize  the 
fact  that  this  service  of  their  entire  property, 
under  the  competent  authority  of  the  municipal- 
ity, will  be  for  the  protection  of  themselves,  as 
well  as  for  the  protection  of  the  general  public. 
They  have  privileges  here,  and  they  have  risks, 
for  which  they  willingly  acknowledge  themselves 
under  obligations  to  furnish  the  public  with  the 
means. at  their  command,  on  the  occasions  de- 
scribed by  the  Legislature — occasions  of  fire  and 
other  great  necessity. 

We  commend  the  discretion  of  the  Legislature 
in  the  general  provision  that,  in  case  of  fire  and 
other  great  necessity,  such  a  corporation  shall 
contribute,  to  the  full  extent  of  its  means,  to  the 
protection  of  that  public  which  induces  their  ex- 
istence and  which  secures  their  rights. 

But  does  it  follow  at  all,  from  this,  that  this 
company  shall  furnish  unlimited  amounts  of  water 
for  all  the  municipal  purposes  of  the  corporation  ? 
— for  all  the  purposes  for  which  the  government 
of  the  city  needs  water  ?  That  they  should  con- 
tribute, to  the  full  supply  of  their  means,  to  such 
purposes,  and  forever  ?  Not  temporarily — not  in 
great  emergency,  and  as  a  part  of  the  law  of  their 
creation!  That  they  should  do  this  at  all  times 
and  forever!  That-the  city  has  the  right  to  take 
possession  of  their  works,  with  a  force  of  police, 
under  the  authority  of  the  courts,  and  do  what 
they  please  with  it! — to-day,  to-morrow,  and  for- 
ever!— without  compensation!  without  considera- 
tion! The  proposition,  it  seems  to  me,  is  mon- 


50 


strous!  and  I  repeat  it,  because  it  seems  to  grow 
as  an  argument  in  the  statement  on  every  occa- 
sion when  it  is  turned  over  to  the  view  of  the 
Court — in  any  other  than  the  peculiarly  plausible 
language  of  my  friend  on  the  other  side. 

Now,  as  a  plain  matter  of  fact,  the  Legislature 
never  intended  any  such  thing.  No  man  of  sense 
ever  supposed,  when  he  voted  for  such  a  proposi- 
tion, that  he  was  granting  power  to  that  extent — 
that  he  was  voting  to  put  the  entire  property  of 
the  corporation  into  the  hands  of  the  municipality, 
for  municipal  purposes  of  the  ordinary  kind,  with- 
out compensation.  He  could  not  so  have  voted 
understandingly ;  because  then  he  would  have 
voted  in  violation  of  his  oath  to  support  the  Con- 
stitution— in  express  violation  of  the  provisions 
of  the  Constitution.  The  Constitution  takes  from 
the  Legislature  all  power  of  that  extreme  kind, 
and  the  Legislature  cannot  confer  or  delegate  that 
extremity  of  power  which  it  does  not  itself  pos- 
sess. 

I  repeat:  this  company  has  never  raised  the 
question  of  its  obligation  in  case  of  fire  or  any 
other  great  necessity,  to  furnish  the  full  supply 
of  its  reservoirs.  And  I  can  imagine  many  other 
cases  of  great  necessity  where  the  demand  and  the 
concession  would  be  equally  good.  When  they 
arise,  they  will  be  provided  for.  There  does  not 
exist  a  disposition,  which  counsel  seems  to  sup- 
pose, or  would  attribute,  to  disobey  in  letter  or 
in  spirit  the  injunction  of  the  general  corporation 
law  in  this  particular.  It  is  a  favorite  topic  with 
him,  and  he  continually  harps  upon  it,  from  the 
bengining  to  the  end  of  his  argument.  As  though 


51 


the  corporation  would,  as  a  public  enemy,  defy 
the  law  which  said  that  it  must  supply,  without 
compensation,  the  city  of  San  Francisco  with  its 
streams  of  water  in  all  cases  of  conflagration  or 
other  great  necessity!  I  think  that  the  company 
will  be  found  willing  in  the  future,  as  it  has  always 
been,  to  meet  this  obligation.  We  can  only  judge 
the  corporation  by  its  past  history.  And,  judging 
by  its  past,  we  may  say:  let  the  calamity  come — 
the  conflagration,  or  the  other  great  necessity — 
and  the  city  will  be  furnished  with  all  the  water 
that  the  corporation  can  produce,  to  the  utmost 
extent  of  its  means,  for  the  protection  of  the 
public. 

Now,  then,  I  go  a  little  further  in  this  proposi- 
tion ;  and  if  the  necessary  construction  of  this 
provision  is  as  the  learned  counsel  for  the  city 
contends,  I  ask  if  that  constitutional  provision  can 
be  maintained  at  all  ?  If  the  necessary  construc- 
tion of  the  provision  be  as  contended  for  by  the 
learned  counsel  for  the  city,  can  the  law  be  main- 
tained, under  the  constitutional  section  which  has 
been  referred  to  ?  Now,  what  is  the  meaning, 
the  intent  and  scope  of  that  provision  in  the  Con- 
stitution providing  that  the  Legislature  may  only 
incorporate  by  general  law,  and  not  by  special 
provision  ?  What  is  the  policy  which  dictated  it  ? 
and  how  far  does  it  go  ? 

It  seems  to  me,  surely,  that  it  was  to  place  all 
private  corporations,  for  whatever  purpose  of 
trade,  or  commerce,  or  business,  upon  the  same 
plane,  with  the  same  powers,  privileges,  rights, 
etc.,  and  on  the  other  hand,  to  submit  them  to 
the  same  duties,  obligations,  and  responsibilities 


52 


to  the  public  and  to  the  people.  Now,  that  has 
been  done  by  general  law,  as  this  Court  has 
decided,  and  is  plainly  the  meaning  and  construc- 
tion of  the  constitutional  provision.  This  is  to 
be  done  by  a  general  law  under  which  all  corpor- 
ations, for  whatever  purpose  they  are  formed,  for 
whatever  business  within  the  scope  of  the  general 
law  permitted,  they  are  to  have  the  same  uniform 
powers,  duties,  and  obligations — uniform,  extend- 
ing to  all  corporations  alike.  That  general  law, 
you  will  perceive,  is  to  be  the  charter  of  power 
and  of  privileges  to  all  alike,  with  the  same  ex- 
tent of  power,  with  the  same  limit  of  obligation. 
All  are  to  be  alike — all  are  to  have  the  same 
power  and  are  to  be  responsible  to  the  same  obli- 
gations. Certainly  that  is  the  meaning,  the 
policy  and  the  intent  of  that  constitutional  pro- 
vision. And  it  seems  to  me  that  its  true  meaning 
cannot  be  evaded  by  any  species  of  outside  com- 
bative reasoning  in  the  premises.  The  Constitu- 
tion aimed  at  the  establishment  of  a  system  of 
incorporation,  equal  and  uniform,  by  general  law- 
Was  not  that  the  object?  Was  not  that  the  ob- 
ject of  this  provision  in  our  Constitution? 

Everybody  knows  the  evils,  the  difficulties,  the 
dangers  which  drove  some  of  the  new  States  to 
insert  this  provision  into  their  constitution  ;  to 
cut  off  at  the  root  all  special  legislation;  all  grant- 
ing of  special  powers  and  special  privileges  to 
particular  incorporators  or  particular  classes  of 
incorporators.  It  had  been  seen  that  the  evil 
extended  to  all  alike;  that  the  danger  was  funda- 
mental, and  that  the  remedy  must  be  radical. 
They  wanted  to  establish  one  general  system  of 


53 


corporation  which  should  operate  equally  and 
uniformly,  giving  the  same  powers  and  privileges, 
and  exacting  the  same  responsibilities.  And  they 
have  carried  out  this  idea  in  respect  to  all  incor- 
porations, and  in  every  case,  unless  you  except 
the  water  corporations  of  this  State. 

Now,  I  should  like  to  know,  if  your  Honors 
please,  how  far  we  have  advanced  in  this  constitu- 
tional policy,  object  and  purpose,  under  the  guise 
or  pretense — call  it  what  you  please — of  a  general 
law  ;  if  the  Legislature,  under  the  guise  of  general 
law,  may  give  to  every  different  corporation  in 
the  State  different  powers,  different  privileges, 
and  subject  them  to  different  duties  and  different 
obligations  ?  if  the  Legislature  may  burden  some 
corporations  with  duties  and  obligations,  which 
they  free  others  from  ;  and  may  select  a  particular 
class  of  corporations,  and  a  particular  corporation, 
in  a  particular  county  and  a  particular  locality? 
and  give  it  powers  and  exact  from  it  obligations 
and  duties  which  do  not  apply  to  any  other  cor- 
poration, or  to  any  other  class  of  corporations,  or 
to  corporations  in  any  other  portion  of  the  State  ? 

If  this  can  be  done  by  the  law  which  is  desig- 
nated "general,"  the  whole  policy  and  object  of 
the  provision,  it  seems  to  me,  is  defeated.  Then 
you  have  only  got  to  have  a  series  of  what  you 
may  please  to  style  "  general  laws,"  which  will 
cover  particular  classes,  and  you  overthrow  the 
provision  of  the  Constitution  with  a  palpable 
jugglery  of  words  and  terms  and  provisions. 
You  are  going  one  step  farther,  and  having  gene- 
ral laws  which  provide  for  particular  corporations! 
How  can  that  be  ?  Giving  them  a  certain  set  of 


54 


powers  and  privileges,  and  imposing  upon  them 
certain  obligations  and  duties,  while  another  set 
are  burdened  with  different  duties  and  bequeathed 
entirely  different  powers  and  privileges  and  au- 
thority. In  the  meantime  where  is  your  consti- 
tutional provision  ?  You  are  supposed  to  give 
these  privileges  and  to  exact  these  duties  with  a 
uniformity  that  shall  be  evident  in  common  sense 
legislation  and  under  the  interpretation  of  the 
Courts.  But  the  appeal  and  the  contest  here  is 
quite  to  the  contrary. 

Under  the  policy  suggested  and  contended  for, 
have  you  not  evaded  and  defeated  the  constitu- 
tional provision  ?  Have  you  not  overthrown  the 
very  letter  and  spirit  of  the  constitutional  provis- 
ion for  which  there  has  been  so  much  earnest 
contest  in  all  the  new  States  where  men  of  experi- 
ence and  sound  judgment  have  had  to  do  with  the 
framing  of  organic  law  ? 

Municipal  corporations  may  be  created  by 
special  law,  and  that  law  may  be  amended  or 
changed  at  the  pleasure  of  the  Legislature.  Now, 
here,  by  this  little  provision,  the  most  important 
privileges  and  rights  and  benefits  are  secured 
to  the  cities  of  this  State  ;  not  by  the  law 
of  their  creation — not  by  any  amendment  to  that 
law  of  their  creation — not  by  their  organic  act,  in 
any  way,  shape,  or  form,  original  or  amendatory, 
but  by  a  provision  in  the  style  of  a  general  law  of 
incorporation,  requiring  a  particular  class  of  in- 
corporations or  a  particular  incorporation  to  sur- 
render corporation  property,  to  the  full  extent  of 
ownership,  for  all  purposes  of  municipal  govern- 
ment, without  compensation.  There,  you  have  all 


55 


the  whole  thing.  And  that  by  the  very  law  of 
their  corporate  creation — as  a  condition  of  the 
existence  of  a  private  corporation — that  when 
cities  are  concerned,  when  the  business  of  muni- 
cipalities is  involved,  when  they  are  dealing  with 
cities  or  county  governments,  they  shall  contribute 
to  the  full  extent  of  their  ownership.  And  this 
is  the  very  condition  upon  which  they  live! 

Now  then,  may  it  please  the  Court,  if  this  can 
be  done  in  this  way  and  shape,  I  see  no  benefit  in 
that  constitutional  provision  which  demands  uni- 
formity of  system  in  incorporations  by  a  general 
law;  nor  that  other  provision  which  provides  pro- 
tection for  private  property — that  great  consti- 
tutional guarantee  which  secures  and  protects 
private  property  from  the  public  grasp  unless 
compensation  is  made  therefor.  Both  those  con- 
stitutional provisions,  then,  fall  as  dead  letters. 

Now,  if  your  Honors  please,  I  don't  think  the 
Legislature  ever  intended  that  any  such  construc- 
tion should  be  placed  upon  this  Act.  I  ask  your 
Honors  to  hesitate  long  before  you  sanction  the 
construction  given  to  this  law  by  the  counsel  for 
the  other  side — that  construction  which  is  con- 
tended for  here  with  such  earnestness  and  empha- 
sis. I  mean  that  wonderful  construction  which 
would  say  that  this  expression,  used  in  the  law, 
that  all  corporations  incorporated  for  purposes  of 
supplying  the  city  with  water  shall,  in  cases  of 
fire  or  other  great  necessity,  contribute,  to  the  full 
extent  of  their  means,  their  water — that  con- 
struction which  determines  that  this  expression 
means  the  entire  absorbtion  of  the  property  of  the 
incorporation  at  the  will  of  the  officers  of  the 


56 


municipality,  for  municipal  purposes,  without 
compensation.  It  is  contended  that  such  is  a 
direct  and  legal  and  equitable  conclusion  from 
the  general  law,  and  there  is  110  half-way  about  it. 
I  have  already  said  that  the  corporation  has  never 
refused  to  comply  with  the  provision  in  the  cases 
which  are  undoubtedly  intended  to  be  covered  by 
the  law,  although  there  is  nothing  in  this  case 
which  requires  me  to  make  this  statement,  or 
this  claim  or  this  disclaimer.  I  don't  present  it 
in  that  view;  but  I  say  that  such  has  been  the 
history  of  this  incorporation;  and  it  is  an  answer 
to  a  large  share  of  the  personal,  argumentative 
portion  of  the  counsel's  remarks. 

Mr.  Justice  McKiNSTRY.  I  don't  know  that  I 
comprehend  your  argument  exactly  on  this  point. 
You  claim  that  under  the  Constitution,  all  cor- 
porations formed  for  any  purpose  whatever,  must 
be  endowed  with  precisely  the  same  rights,  and 
have  exactly  the  same  obligations  ? 

Mr.  HOGE.  Yes,  sir  ;  the  same  general  rights 
and  obligations. 

Mr.  Judge  MCKINSTRY.  (Continuing.)  That  bur- 
dens may  not  be  put  upon  one  corporation  of  the 
same  class  which  are  not  attached  to  other  cor- 
porations of  the  same  class,  formed  for  the  same 
general  purpose. 

Mr.  Fox.     All  corporations  of  the  same  class. 

Mr.  Justice  CROCKETT.  I  understand  your  argu- 
ment to  be  that  under  the  general  law,  corpora- 
tions of  this  character  are  to  be  burdened  with 
certain  obligations  and  given  certain  privileges, 
and  granted  certain  authority,  in  conformity  with 
a  general  rule  ;  that  the  general  provisions  which 


57 


apply  to  corporations  must  be  observed  in  any 
law  which  is  called  a  general  law,  applicable  to 
corporations  of  this  character,  with  respect  to  uni- 
formity of  rights  and  obligations. 

Mr.  HOGE.  This  is  precisely  the  argument  I 
am  attempting  to  make  under  this  provision.  The 
Court  has  decided  that  this  corporation  is  amen- 
able to  the  law  under  the  Statute  of  1858,  which 
is  termed  a  general  law,  setting  forth  general  re- 
sponsibilities and  rights  of  water  corporations. 

Mr.  Justice  CROCKETT.  Well,  do  I  understand 
you  to  say  that  the  rights  and  obligations  in  each 
case  of  a  corporation  formed  under  the  general 
law  must  be  identical  ?  that  the  rights  and  duties 
of  a  corporation  having  to  do  with  a  municipality, 
which  is  the  creature  of  a  special  charter,  shall  be 
uniform  and  identical  with  similar  incorporations 
in  every  instance  ? 

Mr.  HOGE.  I  don't  mean  to  say  that  they  shall 
be  identical;  but  they  shall  be  similar  as  far  as 
the  rights  and  duties  and  obligations  of  a  corpo- 
ration are  concerned. 

Mr.  Justice  CROCKETT.  Are  there  not  peculiar 
duties  accompanying  peculiar  rights?  Are  there 
not  special  privileges  and  obligations  which  are 
to  be  attached  to  corporations  authorized  to  act 
in  connection  with  municipal  corporations  in  this 
State  ? 

Mr.  HOGE.  I  thought  I  presented  the  limita- 
tions properly  in  the  course  of  my  argument.  I 
think  the  general  law  of  incorporation  for  the 
Water  Companies  takes  in  its  scope  all  the  pe- 
culiar privileges  and  duties  which  should  be 


58 


attached   to  corporations  of  that   character — to 
corporations  dealing  with  municipalities. 

Mr.  Justice  RHODES.  It  seems  to  me  that  your 
argument,  as  you  presented  it,  would  go  too  far 
altogether.  The  result  of  your  argument,  as  it 
appeared  to  me,  would  be  this:  that  we  have  no 
valid  incorporations  under  the  incorporation  laws 
of  this  State,  if  all  classes  of  incorporations  are  to 
be  subjected  to  precisely  the  same  conditions  in 
the  way  of  obligations  and  duties,  and  rights  and 
privileges. 

Mr.  HOGE.  I  attempted  to  show  that  in  no 
other  instance  has  there  been  an  effort  to  annex 
such  conditions  or  exact  such  duties  or  inflict 
such  obligations  as  are  contended  for  here.  In 
no  other  State  in  this  Union,  I  venture  to  say, 
has  any  such  attempt  been  made  up  to  this  time. 
Of  course  there  are  different  provisions  in  relation 
to  the  organization  of  different  corporations  ;  cf 
course  the  different  character  of  business  of  dif- 
ferent corporations  will  give  a  direct  control  in 
all  the  details  of  the  organization  and  in  all  the 
minutiae  of  its  workings ;  but  the  general  princi- 
ples of  uniformity  are  to  be  observed  in  the  dif- 
ferent corporations  with  respect  to  mutuality  of 
rights  and  privileges,  and  under  the  common 
sense  construction  of  the  law,  which  deserves  to 
have  the  title  of  a  general  statute.  In  no  other 
State  in  the  Union  has  there  ever  been  an  attempt 
of  this  kind  made,  outside  of  the  State  of  Califor- 
nia, nor  anywhere  else,  that  I  am  aware  of.  Of 
course  different  corporations  have  different  forms 
of  operations;  they  have  different  sums  in  their 
capital  stock  —  different  modes  of  paying  it  in— 


59 


different  percentages  required.  There  is  all  rea- 
sonable license  and  liberty  in  this  respect  under 
the  general  law  ;  but  the  powers  and  duties  and 
rights  and  privileges  are  to  be  brought  under  the 
text  which  gives  uniformity  of  operation. 

Mr.  Justice  RHODES.  I  think  you  will  find 
yourself  very  much  mistaken  in  this  proposition, 
if  T  understand  you  correctly.  But  I  don't  think 
it  is  necessary  for  your  general  argument. 

Mr.  HOGE.  I  don't  think  so.  And  I  have 
intended  to  make  that  express  exception.  I  think 
I  could  maintain  this  proposition.  And  as  I  have 
said,  I  think  it  is  legitimate  to  resort  to  it  for  the 
purpose  of  reflecting  on  the  intent  and  meaning  of 
the  Legislature  in  the  adoption  of  this  provision. 
I  think  it  throws  light  upon  the  question  as  to 
what  they  meant  when  they  used  the  term  "  in 
case  of  fire  or  other  great  necessity." 

There  is  another  proposition  that  grows  out  of 
this.  This  a-3t  of  1858  says  what?  It  simply 
extends  and  applies  the  provision  of  general  law — 
of  the  general  incorporation  law  of  '53  and  '55 — 
to  all  corporations  already  formed,  or  hereafter  to 
be  formed,  for  purposes  of  supplying  any  city  and 
county,  or  city  or  town,  or  the  inhabitants,  with 
water;  enabling  them  to  sue  or  be  sued;  putting 
the  burden  upon  them  that  attaches  to  any  other 
corporation  with  respect  to  certain  supplies,  in 
the  language  which  I  have  so  often  quoted. 

Mr.  Justice  CROCKETT.  It  is  about  the  hour  of 
adjournment,  It  would  scarcely  be  worth  while 
for  you  to  take  up  any  other  point. 

Mr.  HOGE.  To  what  time  will  the  Court  ad- 
journ ? 


60 


Mr.  Justice  CROCKETT.  The  Court  will  adjourn 
until  to-morrow  morning.  [After  consultation.] 

Mr.  HOGE.  I  should  prefer  to  have  the  case  go 
over  until  Monday  morning. 

[The  Court  adjourned  until  the  following  Satur- 
day morning.] 


Continuation  of  Argument  of  J.  P.  Hoge. 


MAY  14,  1877. 

After  Mr.  JOHN  F.  SWIFT  had  presented  an  addi- 
tional point  [see  Appendix  A],  Mr.  HOGE  con- 
tinued, as  follows: 

Mr.  HOGE.  There  is  nothing  new  in  the  point 
presented.  It  is  a  mere  amplification  of  what  was 
discussed  before  you  for  a  long  time  in  the  course 
of  the  gentleman's  argument.  I  do  not  expect  at 
present  to  say  anything  upon  that  subject. 

Thus  far  in  the  discussion  I  have  confined  my- 
self to  what  I  suppose  to  be  the  questions  that 
are  common  to  all  these  cases — involved  in  all  of 
them. 

What  I  shall  have  to  say  to-day  will  be  mainly 
applicable  to  the  case  of  the  appeal  from  the  de- 
cision of  the  Fifteenth  District  Court  in  the 
mandamus  case. 


61 


But  before  I  proceed  to  offer  what  T  have  to 
say  on  that  case,  there  are  one  or  two  other  mat- 
ters bearing  upon  the  general  questions  involved, 
which  I  propose  to  notice. 

The  learned  counsel  for  the  city,  in  discussing 
the  fourth  point,  in  his  elaborate  brief,  on  page 
43,  contends  that  the  Spring  Valley  Water  Com- 
pany is  bound  as  the  successor  of  the  San  Fran- 
cisco Water  Works  Company,  under  the  provisions 
of  Order  Number  46.  to  furnish  the  city  with 
water  for  all  municipal  purposes,  except  the 
sprinkling  of  streets.  And  that  the  water  charged 
for  in  Demand  Number  895 — which  is  the  demand 
referred  to  in  the  mandamus  case — was  furnished 
within  that  duty.  And  that  the  company,  while 
holding  the  property  of  the  city,  is  estopped 
from  alleging  the  unconstitutionally  of  the  or- 
der, or  from  denying  its  validity. 

And,  in  the  course  of  his  argument,  the  counsel 
seemed  to  rely  on  the  idea  that  this  ordinance 
was  a  contract  still  in  existence  and  governing 
the  rights  of  the  parties.  Out  of  that  ordinance 
it  would  be  difficult  to  extract  any  indications  of 
a  contract  between  the  city  and  county  and  a  cor- 
poration. 

The  ordinance  or  document   is  an   attempt,  as 
your  Honors  will   see  by  reading  it,  on  the  part 
of  the  city,  to  grant  certain  privileges  and  rights 
and  franchises  to  an  existing  corporation,  to  bring, 
water  into  the   city  and  through  its  streets,  sub- 
jecting the   corporation   to    onerous  duties,   and 
giving  them  certain  benefits,  privileges,  and  fran 
chises  different  from  those  of  any  other  corpora- 
tion. 


62 


So  far  from  giving  any  right  of  property,  as  the 
counsel  contends,  the  ordinance  most  carefully 
guards  against  any  surrender  of  any  claims  upon 
the  part  of  the  city  and  the  part  of  the  company, 
leaving  them  precisely  as  they  were  before. 

The  ^authorities  of  the  city  knew,  of  course, 
that  this  ordinance  exceeded  their  powers;  that 
they  had  no  power  to  pass  such  an  ordinance  with 
such  peculiar  provisions  in  relation  to  corpora- 
tions. They  therefore  go  to  the  Legislature  for 
its  approval.  And  this  ordinance  received  what- 
ever validity  it  may  have  had,  if  it  ever  had  any, 
from  the  Act  of  the  Legislature  alone.  And  as 
the  necessary  result  of  the  decision  of  this  Court 
in  the  48th  California,  this  was  an  exercise  of 
legislative  power  within  the  prohibition  of  that 
provision  of  the  Constitution  on  which  your 
Honors  passed  in  that  case.  And  therefore  the 
counsel,  in  his  sworn  answer  as  well  as  in  his 
argument  and  unprinted  brief,  assumes  that  the 
provisions  of  the  ordinance  were  unconstitutional 
and  void  within  that  decision.  And  to  avoid  the 
effect  of  that  he  takes  the  ground  that  this  was  a 
contract  unaffected  by  these  provisions,  and  that 
the  city  is  the  owner  of  the  property.  And  when 
one  of  your  Honors  asked  him  what  inference  he 
would  draw  from  that  proposition — supposing  the 
city  to  be  the  owner — his  reply  was:  the  company 
cannot  charge  us  for  water  while  in  possession  of 
our  property. 

Now  assuming  that  the  learned  counsel  was 
right  in  his  construction  of  that  ordinance,  I  do 
not  apprehend  that  any  such  consequences  would 
follow  from  it, — not  by  any  manner  of  means. 


63 


The  city  has  the  right,  according  to  the  theory 
of  the  counsel,  to  take  all  the  water  she  wishes  for 
all  her  municipal  purposes,  because  she  alleges 
that  the  company  is  in  possession  of  certain  prop- 
erty of  hers,  and  that  therefore  she  may  go  to  all 
the  water  sources  of  this  corporation  for  supplies 
at  her  pleasure,  and  to  any  extent  and  for  any 
purpose  whatever.  That  is  the  corollary  of  his 
proposition :  that  the  city  owns  this  property 
and  that  the  company  is  in  possession  of  it,  and 
therefore  they  have  the  right  to  go  to  all  the, 
sources  of  this  company  and  take  at  their  pleasure 
for  all  the  municipal  purposes  of  the  city. 

Now  then,  if  this  corporation  is  in  possession 
of  any  property  belonging  to  the  City  of  San 
Francisco,  it  seems  to  me  that  her  remedy  would 
be  v^ery  different — of  a  very  different  character 
from  that  which  counsel  supposes.  The  city 
would  derive  no  right  from  that  fact — if  it  is  called 
a  fact — to  take  the  water  as  indicated  for  all  muni- 
cipal purposes, — by  no  manner  of  means. 

Nor  is  the  proposition  aided,  or  put  in  any  bet- 
ter condition,  if  we  were  to  admit  that  the  original 
character  of  that  Ordinance  46  was  just  what 
he  claims  for  it.  It  would  not  help  his  argument 
or  position. 

The  City  of  San  Francisco  is  the  mere  creature 
of  the  State  government.  It  is  an  instrument  of 
the  State  government;  it  is  an  arm  of  the  State 
government;  all  its  powers,  all  its  duties,  all  its 
privileges  as  a  public  body,  are  within  the  control 
and  disposition  of  the  State  Legislature  ; — en- 
tirely so. 


64 


The  State,  by  express  legislative  provision, 
relieved  the  old  City  Water  Works  from  these 
burdensome  provisions  of  this  ordinance,  long 
before  the  Spring  Valley  Water  Co.  had  anything 
to  do  with  it  or  with  its  property ;  years  before. 
That  legislation,  as  already  decided,  placed  the 
Spring  Valley  Water  Co.  and  the  City  Water  Works 
Co.  on  precisely  the  same  plane,  with  reference 
to  their  rights.  It  has  been  decided  that  the 
rights  of  either  or  both  of  them,  are  to  be  looked 
for  and  ascertained  in  the  provisions  of  the  Act 
of  1858,  and  nowhere  else.  That  was  the  direct 
decision  of  this  Court,  which  disposes  of  the 
operation  of  Ordinance  46,  with  reference  to 
these  issues,  in  every  way,  and  lays  them  entirely 
out  of.  the  case.  It  has  been  held,  that  no  duties 
rested  on  the  Spring  Valley  Water  Co.  in  conse- 
quence of  that  ordinance.  So  it  is  very  strange 
reasoning  on  the  part  of  counsel,  to  attempt  to 
show  that  the  Spring  Valley  Water  Co.,  when  it 
undertook  to  buy  the  property  of  the  City  Water 
Works  Co.,  thereby  bound  itself  to  carry  out  all 
the  contracts  that  had  been,  at  one  time  or  another, 
made  by  the  City  Water  Works  Co.,  or  that  its 
individual  rights  were  affected  in  any  way  by  the 
provisions  and  condition  and  position  of  the  City 
Water  Works  Co.  subsequent  to  its  organization. 

In  point  of  fact,  this  ordinance  question  does 
not  arise  at  all  in  the  mandamus  case  involving 
the  $92,000;  it  is  not  set  up  in  the  pleadings  in 
any  way  whatever.  There  is  not  a  word  about  the 
City  Water  Works  in  all  the  pleadings  in  the  man- 
damus case  ;  nor  is  there  a  single  word  to  show 
that  the  claim  for  which  that  proceeding  was  had, 


65 


had  anything  to  do  with  the  position  of  the  old 
City  Water  Works  Company  whatsoever,  or  with 
its  relation  to  the  water  supply,  in  any  way  what- 
ever. 

Now,  in  the  course  of  this  argument,  the  learned 
counsel  has  advanced  a  great  many  propositions 
that  seem  to  me  to  be  very  novel.  And  not  the 
least  novel  of  them  all,  is  one  which  I  am  about 
to  mention.  I  think  he  is  entitled  to  the  claim  of 
originality — certainly,  to  the  extent  to  which  this 
proposition  goes — however  opinions  might  differ 
as  to  the  soundness  of  the  proposition,  or  whether 
it  was  applicable  at  all  to  the  case  in  hand. 

One  of  these  propositions  of  the  counsel  is,  that 
the  city  and  county  has  no  power  to  buy  water 
for  its  ordinary  municipal  purposes,  for  its  indis- 
pensable necessities,  and  can  only  get  it  free  ; 
tracing  its  right  to  get  it  without  compensation,  to 
a  provision  of  the  4th  Section  of  the  Act  of  1858. 
And  that,  as  a  corollary  from  that  proposition, 
the  Board  of  Supervisors  had  no  authority,  no 
power  to  allow  or  order  paid  the  amount  which  is 
the  subject  of  this  proceeding  by  mandamus;  and 
that  all  acts  in  regard  to  the  petitioners'  claim — 
the  judgment  and  decision  of  the  Board,  and  the 
appeal — was  absolutely  void;  and  that  the  Auditor 
is  at  liberty,  and  has  the  legal  right  to  disregard 
all  this  action  of  the  Board,  and  may  refuse  to 
obey  their  decision;  and  may  avail  himself  of 
that  defence  in  this  proceeding.  Now,  I  state  the 
position  and  argument  of  the  counsel,  as  broad  as 
he  makes  it.  That,  I  understand  to  be  the  propo- 
sition. This  is  the  proposition  which  lies  at  the 
very  foundation  of  his  argument,  and  which  he 


66 


has  attempted  to  maintain  throughout  all  the 
stages  of  this  discussion. 

Now,  that  argument  seemed  to  be  based,  if  I 
understand  it,  upon  this  proposition:  that  this  city 
government  can  exercise  no  power,  except  what 
is  specifically  granted  in  words  and  figures;  that 
you  must  lay  your  finger  upon  the  precise  pro- 
vision in  the  Consolidation  Act  in  order  to  entitle 
the  city  government  to  exercise  any  power. 

Now,  I  have  always  understood  the  rule  to  be 
just  the  reverse:  that  they  might  exercise  all 
powers  incidental  to  and  necessary  to  the  carry- 
ing out  of  the  powers  granted,  or  which  are  essen- 
tial to  the  objects  and  purposes  of  its  existence; 
that  they  may  make  contracts  and  may  do  things 
within  their  legitimate  legislative  power.  I  sup- 
pose that  these  propositions  are  very  well  settled 
by  authority;  and  it  is  not  necessary  to  specify 
or  read  any  cases  on  that.  Some  of  the  cases  are 
cited  in  the  brief. 

The  Board  of  Supervisors  are  the  governing 
power  of  this  city  and  county.  The  State  gov- 
ernment, by  express  legislative  provision,  has  put 
into  the  hands  of  the  Board  of  Supervisors  powers 
judicial,  executive,  legislative,  and,  in  a  general 
sense,  financial — for  the  general  government  of  the 
city — for  the  general  welfare  of  the  people  of  this 
city  and  county.  All  these  powers  are  vested  in 
a  Board  of  Supervisors,  by  the  Legislature  of  this 
State.  This  Board  has  control  and  regulating 
power  over  all  the  various  departments  of  the 
city  government.  It  has  the  power  to  make  con- 
tracts, to  incur  expenditures,  to  pay  bills,  to 
entertain  appeals  from  the  reductions  by  the 


67 


Auditor,  etc.;  in  fact,  it  has  all  the  powers  and 
duties  which  go  to  make  up  a  great  city  govern- 
ment, all  vested  in  the  Board  of  Supervisors—all 
the  powers  necessary  to  and  essential  to  the 
objects  and  purposes  of  a  city  government,  and 
which  are  the  very  essence  of  such  a  government. 
All  this  is  within  the  meaning  of  the  phrase  that 
is  used  —  a  city  government;  an  arm  of  the  State 
government,  authorized  duly  by  the  Legislature 
to  exercise  all  needed  control  and  management  of 
the  affairs  of  the  municipality,  such  as  are  una- 
voidably connected  with  the  rule  in  a  gre.it  city. 

And  under  such  circumstances,  the  proposition 
that  this  city  has  no  power  to  buy  any  water  for 
its  indispensable  purposes — for  those  purposes 
which  are  essential  to  the  carrying  out  of  its  opera- 
tions,— seems  to  me  to  be  a  very  startling  proposi- 
tion, if  not  a  monstrous  idea; — a  proposition,  the 
very  statement  of  which  is  sufficient  to  refute  it. 
The  very  foundation  idea  of  a  city  government 
would  seem  to  have  been  reversed  in  the  argu- 
ment of  the  counsel.  The  practice  of  the  city 
government  from,  the  very  beginning,  is  against 
such  an  idea. 

The  very  provisions  in  the  Act  of  its  creation, 
looking  to  the  thousand  purposes  for  which  these 
municipal  officers  have  to  act  as  governors  of  the 
city — the  supplies  which  are  absolutely  necessary 
to  carrying  on  the  operations  of  the  government, 
and  to  carry  out  the  express  powers  which  are 
given  to  the  municipality — seems  to  me  to  put 
such  a  question  as  this  at  rest  forever. 

The  very  first  section  of  the  Act  that  estab- 
lished a  city  government — the  very  first  section 


68 


gives  the  city  power  to  purchase,  receive,  hold, 
and  enjoy  any  personal  property;  to  sell  and  con- 
vey and  mortgage,  and  dispose  of  the  same  for 
the  common  benefit.  This  is  essential  to  the  very 
existence  of  the  municipality  as  a  government; 
it  is  essential  to  the  carrying  on  of  its  very  objects 
and  purposes;  to  the  protection  of  its  people;  to 
guarding  the  general  welfare,  and  to  the  admin- 
istering of  its  affairs.  Why,  all  these  powers  are 
absolutely  essential;  they  belong  to  the  city  in 
very  virtue  of  its  name;  they  are  vested  there — 
vested  in  the  legislative  body  which,  by  the  pro- 
visions of  the  State  law,  is  created — vested  there 
as  necessary  to  satisfactory  government  of  this 
large  portion  of  the  people  of  the  State.  This 
body  is  endowed  with  all  the  powers  the  State 
can  give  it,  to  attend  to  the  safety,  happiness  and 
protection  of  the  community  under  its  govern- 
ment. That  is,  all  the  powers  that  are  properly 
to  be  derived  from  a  general  legislative  enactment 
for  such  a  purpose.  But,  according  to  this  theory 
of  the  learned  counsel,  the  city  government  would 
be  unable  to  carry  out  the  objects  and  purposes 
for  which  the  government  was  established,  and 
would  be  paralyzed  at  the  very  outset  and  begin- 
ning of  its  administration. 

I  do  not  suppose  that  the  Legislature  ever 
dreamt  that  in  these  provisions  of  the  law  they  were 
stultifying  themselves;  and  the  very  Acts  in  rela- 
tion to  these  water  supplies  which  we  have  been 
considering  during  the  whole  course  of  this  argu- 
ment, would  show  that  such  an  idea  was  never 
extant.  These  Acts,  of  course,  we  will  have  occa- 
sion to  look  into  presently. 


69 


But  the  counsel  did  not  stop  even  with  that 
proposition:  that  the  city  had  no  power  to  buy 
water  for  its  municipal  purposes. 

He  goes  on  to  say  that  this  corporation  has  no 
right  to  sell  water!  That  its  powers  are  confined 
to  the  furnishing  of  the  inhabitants,  and  not  the 
city,  with  water;  that  it  can  only  sell  to  the  in- 
habitants of  the  city  for  family  uses,  and  can  get 
no  compensation  from  any  others!  That  the  law 
dedicates  this  property  to  public  uses;  all  that  is 
over  and  above  what  is  necessary  for  the  supply 
of  family  uses  the  city  may  take  for  its  own  use! 
Now,  that  was  the  length  and  breadth  of  his 
proposition. 

Now  this  corporation,  may  it  please  your  Hon- 
ors, has  all  the  powers  and  privileges,  and  is  sub- 
ject to  the  duties  and  obligations  placed  upon  it 
by  the  Acts  of  1853  and  1855,  as  applied  to  it  by 
the  Act  of  1858. 

No  laws  establish  what  provisions  those  Acts 
present.  I  have  extracts  of  them  here,  to  save 
time  otherwise  consumed  in  reading  from  the 
original  text. 

The  first  section  of  the  Act  of  1858,  under 
which  this  corporation  was  incorporated,  extends 
the  provisions  of  the  Act  of  1853 — the  general 
incorporation  law — to  all  incorporations  already 
or  hereafter  to  be  formed  for  the  purposes  of  sup- 
plying any  city  and  county,  or  any  city  or  town 
in  this  State,  or  the  inhabitants  thereof,  with 
pure,  fresh  water. 

The  proviso  to  the  2d  section  enacts  that  all 
reservoirs,  etc.,  etc.,  of  these  corporations  thus 
formed  in  California,  shall  be  used  exclusively  for 


70 


the  purpose  of  supply  any  city  or  county,  or  any 
cities  or  towns  of  the  inhabitants  of  this  State,  or 
the  inhabitants  thereof,  with  pure,  fresh  water. 

The  3d  section  relates  directly  to  the  introduc- 
tion of  fresh  water  into  the  City  and  County  of 
San  Francisco. 

And  the  4th  section  required  them  to  furnish 
the  city  and  county  water,  in  cases  of  fire,  free  of 
charge,  etc. 

And  the  5th  section  gives  them  the  right  to  use 
the  streets  of  the  city,  under  the  directions  of  the 
Board  of  Supervisors. 

So,  then,  it  clearly  appears,  by  the  very  terms 
of  the  law  and  of  the  charter  of  the  company 
itself — for  the  law  is  the  charter — that  they  be- 
came bound  to  do  what?  To  supply  water,  to  be 
used  by  the  corporate  authorities  as  well  as  by 
private  consumers.  And  if  so,  then  of  necessity, 
and  by  law,  a  reciprocal  obligation  arises,  on  the 
part  of  the  city,  to  pay  for  all  water  thus  con- 
sumed, except  for  the  purposes  of  fire,  or  other 
great  necessity;  which  last  clause  relieved  the  city 
from  the  necessity  of  paying  for  water  for  such 
purposes. 

If  the  proposition  of  the  counsel  is  correct,  then 
the  City  and  County  of  San  Francisco  is  the  only 
community  in  this  State  which  is  denied  this 
essential  power;  because  all  other  communities 
possess  the  power  under  the  provision  of  the 
Political  Code.  And  I  suppose  the  City  and 
County  of  San  Francisco  has  the  duties,  and  is 
liable  to  the  same  limitations  of  power  that  attach 
to  any  other  community  in  the  State,  except 
where  there  may  be  different  provisions  in  the 
Consolidation  Act  which  are  still  left  in  force. 


71 


Now,  this  company  was  incorporated  under 
these  laws  of  1853  and  '5  as  applied  by  the  Act 
of  1858,  as  is  admitted.  And  it  has  all  the  powers 
and  rights  that  the  law  gives  it. 

The  counsel  seemed  to  contend  that  the  certi- 
cate  of  incorporation  limited  it. 

The  certificate  is  not  here  in  the  record.  And 
the  pleadings  say  that  the  company  was  incorpo- 
rated under  these  Acts,  and  was  endowed  with  all 
the  rights  and  power  furnished  by  these  Acts. 
But  if  it  is  not  so,  it  don't  make  any  difference 
whatever,  if  it  does  not  so  appear  in  that  form  ; 
because  the  powers  are  from  the  law,  and  not  from 
the  certificate. 

Mr.  SWIFT.  The  certificate  shows  the  purposes 
for  which  they  organized. 

Mr.  HOGE.  They  organized  under  that  law,  for 
the  purposes  which  that  law  designates,  and  have 
all  the  powers  given  by  that  law,  and  are  liable  to 
all  duties  under  that  law. 

The    CHIEF   JUSTICE.      1    understand    that   the 
certificate  is  not  in  the  record. 
Mr.  HOGE.     No,  sir. 

Mr.  Fox.  It  is  set  forth  in  one  of  the  briefs  in 
the  former  case. 

Mr.  SWIFT.  You  allege  it. 
Mr.  HOGE.  The  company  was  organized  with 
all  the  authority  and  all  the  obligations  which  the 
law  prescribes.  If  the  counsel  were  right  in  his 
proposition,  it  would  withdraw  us  from  the  oper- 
ation of  this  provision  in  the  Act  itself,  which 
prescribes  that,  for  certain  purposes,  the  company 
should  furnish  water  free  of  charge.  Because, 
according  to  his  reasoning,  they  could  not- — at  one 


72 


time  they  could  not — charge  the  city  at  all  for  any 
purpose  whatever.  Directly  to  the  contrary  is 
the  provision  of  the  law  that  was  inserted  indus- 
triously, which  relieves  the  city  from  some 
charges  in  certain  specified  instances.  Otherwise 
the  city  would  be  in  the  same  position  with  any 
other  consumer  of  water  within  the  corporation. 
But  the  law  provides  that  they  shall  not  pay  for 
it  when  used  for  fire  or  other  great  necessity.  I 
shall  have  occasion  to  refer  to  that  law  presently 
on  another  proposition  of  the  counsel. 

In  connection  with  this  proposition  the  counsel 
has  made  or  assumed  another  one — and  attempted 
to  sustain  it  by  a  great  number  of  authorities — 
on  the  subject  of  tolls.  The  proposition,  if  I 
understand  him,  is  this:  that  the  Spring  Valley 
Water  Company  cannot  recover  from  the  city, 
because  no  rates  have  been  fixed,  in  pursuance  of 
the  provisions  of  law  upon  which  he  relies.  The 
Company  cannot  charge  either  the  city  or  any 
body  else  —  for  the  argument  goes  that  length — 
until  the  rates  are  fixed.  And  he  claims  that  the 
Company  is  bound  to  cause  these  rates  to  be 
fixed,  before  they  have  any  power  to  charge  any- 
thing. And  as  a  corollary  from  this  proposition, 
he  derives  the  result  that  the  city  has  the  right, 
in  all  time,  to  take  this  property  and  use  it  at  its 
pleasure,  without  compensation  ;  that,  I  under- 
stand to  be  the  proposition. 

Now,  if  your  Honors  please,  it  seems  to  me  suf- 
ficiently apparent,  upon  an  examination  of  this 
statute,  that  these  authorities  have  n't  the  slight- 
est application  whatever — these  authorities  which 
the  gentleman  has  cited  have  n't  the  slighest 


73 


application  or  bearing  on  the  real  question;  these 
authorities  are  in  relation  to  the  grant  of  fran- 
chises, to  take  toll,  etc.  Now,  then,  the  power  to 
charge  for  water  does  not  come  from,  and  is  not 
based  upon,  this  clause  in  the  Act  at  all — this 
clause  in  relation  to  rates. 

The  Act  of  1853— this  Act,'  which  the  Act  of 
1858  applies  to  this  corporation,  in  its  4th  Section 
gives  the  power  to  the  corporation. 

The  1st  Section  reads  as  follows  (reading): 

"  Corporations  for  manufacturing,  mining,  me- 
chanical or  chemical  purposes,  or  for  the  purposes 
of  engaging  in  any  species  of  trade  or  commerce, 
foreign  or  domestic,  may  be  formed  according  to 
the  provisions  of  this  Act;  such  corporations,  and 
the  members  thereof,  being  subject  to  all  the  con- 
ditions and  liabilities  herein  imposed,  and  to  none 
others.1' 

The  1st  Section  of  the  Act  of  1858  reads  as 
follows  (reading) : 

"  The  provisions  of  an  Act  entitled  an  Act  to 
provide  for  the  formation  of  corporations  for 
certain  purposes,  passed  April  fourteenth,  one 
thousand  eight  hundred  and  fifty-three,  and  the 
provisions  of  an  Act  entitled  an  Act  to  amend  an 
Act  entitled  an  Act  to  provide  for  the  formation 
of  corporations  for  certain  purposes,  passed  April 
fourteenth,  one  thousand  eight  hundred  and  fifty- 
three,  and  passed  on  the  thirtieth  (30th)  day  of 
April,  one  thousand  eight  hundred  and  fifty-five, 
shall  extend  to  and  apply  to  all  corporations 
already  formed,  or  hereafter  to  be  formed,  under 
said  Acts,  for  the  purpose  of  supplying  any  city 
and  county,  or  any  other  cities  and  towns  in  this 
State,  or  the  inhabitants  thereof,  with  pure,  fresh 
water." 


The  2d  Section  of  the  Act  of  1858  reads  as  fol- 
lows : — 

''Any  company  incorporated  for  the  purpose8 
specified  in  the  preceding  section,  shall  have  the 
right  to  purchase,  or  to  appropriate  and  take  pos- 
session of,  and  use  and  hold,  all  such  lands  and 
waters  as  may  be  required  for  the  purposes  of  the 
company,  upon  making  compensation  therefor. 
The  mode  of  proceeding  to  appropriate  and  take 
possession  of  such  lands  and  waters,  when  the 
parties  cannot  agree  upon  a  purchase  thereof, 
shall  be  the  same  as  prescribed  in  sections  twenty- 
seven,  twenty-eight,  and  twenty-nine,  of  an  act  to 
provide  for  the  incorporating  of  railroad  com- 
panies, passed  April  twenty-second,  one  thousand 
eight  hundred  and  fifty-three,  except  that  such 
proceedings  shall  be  had  before  the  county  judge 
of  the  county  in  which  such  lands  or  waters, 
or  both,  may  be  situated ;  provided,  that  all  reser- 
voirs, canals,  ditches,  pipes,  aqueducts,  and  all 
conduits  heretofore  built,  or  that  hereafter  may 
be  constructed  by  any  corporation  formed  under 
this  Act,  or  claiming  the  privileges,  rights,  and 
immunities  herein  granted,  or  any  of  them,  shall 
be  used  exclusively  for  the  purpose  of  supplying 
any  city  and  county,  or  any  cities  or  towns,  in 
this  State,  or  the  inhabitants  thereof,  with  pure, 
fresh  water." 

Here  is  a  provision  which  has  already  been  the 
subject  of  decision  by  this  Court.  Here  is  the 
power  to  purchase,  hold,  sell  and  convey  such 
real  and  personal  estate  as  the  purposes  of  the 
corporation  shall  require. 

In  the  case  of  the  Miners'  Ditch  Co.  vs.  Zeller- 
bach,  in  the  37th  Cal.:  in  the  case  of  Martin  vs. 
Zellerbach,  38th  Cal.,  I  think  these  questions 
all  came  up,  and  were  all  discussed.  As  to  the 


75 


power  of  a  corporation,  given  under  these  Acts, 
to  sell  its  entire  property,  to  dispose  of  its  entire 
property;  rendering  it  really  impossible  for  it 
to  carry  on  its  operation.  And  the  Court  sus- 
tains the  power.  The  Court  say  they  have  the 
power  to  dispose  of  their  entire  property. 

Now,  the  powers  of  this  Water  Company  come 
from  the  Act  of  1853;  not  from  this  clause  in 
relation  to  rates — not  by  any  manner  of  means. 

They  have  the  right  to  dis.pose  of  any  property 
which  they  acquire.  They  have  the  right  to 
acquire  any  property  which  their  purposes  de- 
mand, and  they  have  the  right  to  dispose  of  it. 
They  have  the  right  to  obtain  and  hold,  and  sell 
and  dispose  of.  It  is  not  a  grant  of  title  at  all; 
it  is  a  corporation  selling  its  property. 

And  hence  the  argument  of  counsel,  in  this 
particular,  is  inapplicable. 

The  argument  of  counsel — in  order  to  apply 
his  cases  with  reference  to  tolls — assumes  that 
water  isn't  a  subject  of  property  at  all.  He 
assumes  that  if  it  were-  oil,  or  any  other  species 
of  property,  the  rule  would  be  different,  and  that 
the  company  would  have  the  right  to  dispose  of  it. 

The  Act  of  1858  requires  that  the  company 
should  furnish  water,  at  reasonable  rater,  to  the 
citizens  of  the  city;  and  shall  furnish  water  to 
the  city,  under  certain  circumstances,  free. 

In  order,  then,  to  give  the  government  of 'the 
city  the  power  to  say  that  these  rates  are  rea- 
sonable— to  compel  them  to  be  reasonable — the 
Act  gives  this  power  through  a  certain  proceed- 
ing. A  commission  may  be  appointed  to  ascer- 
tain these  rates.  This  is  for  the  public  protection. 


76 


It  is  not  a  limitation  upon  the  right  of  the  com- 
pany to  sell  that  which  it  can  sell,  at  all  events. 
But  it  is  to  compel  the  company  to.  charge  reason- 
able rates. 

The  initiatory  steps  in  the  exercise  and  applica- 
tion of  that  power  must  come  from  the  city  govern- 
ment, and  not  from  the  corporation  Board.  And 
it  would  be  difficult  to  find  out  from  this  irregu- 
larity, that  the  -city  was  entitled  to  take  the  water 
for  nothing,  because  no  rates  had  been  fixed  by 
the  authorities  under  this  provision  of  the  law. 
And  yet  it  is  assumed  that  there  is  such  an  irreg- 
ularity. Yet  she  may  take  and  use  this  water, 
and  refuse  to  pay  for  it.  Because  she  has  initiated 
no  proceedings  which  would  give  her  any  right 
for  the  protection  of  the  people,  to  insure  reason- 
able rates;  because  she  has  never  taken  the  initia- 
tive in  the  formation  of  a  commission  for  the  fix- 
ing of  such  rates,  so  that  the  company  may  be 
restrained  within  reasonable  limits;  the  right  of 
the  city  to  have  water  for  all  municipal  purposes 
is  assumed  and  argued!  I  say  it  is  preposterous 
to  assume  that  this  entitles  the  city  to  take  the 
water  at  her  pleasure,  and  then  refuse  to  pay  for 
it.  These  rates  are  for  the  inhabitants  of  the  city 
and  not  the  city.  The  power  to  charge  for  the 
water  does  not  come  under  this  provision ;  but  it 
is  a  provision  giving  authority,  on  certain  pro- 
ceedings, to  ascertain  that  the  rates  charged  the 
inhabitants  are  reasonable. 

It  is  organic  in  the  creation  of  this  Company — 
the  right  to  acquire  property  and  hold  it.  and 
dispose  of  it.  The  only  limitation  is  that  the 
Company  shall  not  charge  unreasonable  rates  to 


77 


the  inhabitants  of  the  city  and  county.  In  order 
to  secure  all  needed  protection  to  the  public,  that 
provision  is  inserted,  and  the  city  has  not  seen  fit- 
to  exercise  that  power. 

The  counsel  has  been  continually  talking,  dur- 
ing the  course  of  his  argument,  and  has  even 
assumed  it  as  an  admitted  fact,  that  these  charges 
were  outrageous.  I  don't  think  the  counsel  knew 
what  he  was  talking  about  when  he  alleged  that 
these  charges  were  outrageous. 

Mr.  SWIFT.  It  is  so  charged  in  the  answer,  and 
admitted  by  the  demurrer. 

Mr.  HOGE.  No,  sir;  no,  sir;  there  is  no  demur- 
rer in  any  case  except  in  the  mandamus  proceed- 
ings; and  there  the  demurrer  is,  that  the  facts 
are  not  sufficient  to  constitute  a  defence.  This  is 
based  upon  the  idea  that  the  Board  of  Super- 
visors, in  their  final  decision,  were  the  only  power 
that  passed  upon  that  account,  and  that  they  had 
passed  upon  that  account;  there  is  no  admission 
of  that  sort,  not  in  any  sense  ;  the  counsel  can  't 
show  it.  There  is  no  admission  that  the  charges 
were  outrageous  and  excessive. 

Does  the  counsel  know  what  the  charges  are  ; 
I  believe  that  the  charges  are  based  upon  the 
estimate  of  ten  to  fifteen  cents  per  thousand  gal- 
lons. That  must  be  the  price  which  the  counsel 
denounces  as  outrageous  and  excessive,  if  he  sticks 
by  the  reference  in  the  record.  The  bill  was 
made  upon  that  basis.  Water  is  charged  to  the 
city  for  municipal  purposes,  at  the  rate  of  ten  to 
fifteen  cents  per  one  thousand  gallons  ;  while  the 
rate  to  a  private  consumer  would  be  about  a  dol- 
lar, I  believe. 


78 


The  counsel  don't  seem  to  understand  what  is 
the  function  of  a  demurrer  at  all.  I  shall  not 
waste  time  to  enlighten  him  on  that  point.  It  is 
sufficient  to  say  we  have  admitted  nothing  of  the 
kind;  that  his  constant  assertions  that  we  have 
admitted  that  our  charges  are  outrageous  and  ex- 
cessive are  not  founded  upon  the  record  or  the 
fact. 

In  point  of  fact,  these  rates,  as  authorized  to 
be  fixed  in  this  law,  are  for  the  inhabitants,  and 
not  for  the  city  at  all.  The  agreement  of  the 
city  to  take  water,  implied  or  expressed,  is  suffi- 
cient for  our  purposes.  She  takes  the  water,  and 
then  she  agrees  to  a  fixed  price  which  she  is  will- 
ing to  pay.  It  is  very  clear  that  these  rates  never 
were  intended  to  be  applied  to  the  city.  They 
would  have  no  kind  of  application.  The  city  is 
to  take  water  in  immense  quantities,  and  the  rule 
requiring  the  authorities  to  fix  certain  rates  for 
private  citizens,  for  family  uses,  would  have  no 
application  whatever  to  the  demands  of  the  city 
for  water  for  her  great  purposes.  This  view  is 
manifest  on  its  face. 

Everybody  knows,  who  has  ever  made  any 
inquiry  on  the  subject,  that  no  water  corporation 
charges  a  city  at  the  same  rate  which  she  charges 
private  parties  for  family  use.  There  is  no  kind 
of  analogy  between  the  rates.  The  corporation 
charges  little  or  nothing  for  the  thousands  of 
gallons  necessary  for  the  operations  of  a  city. 
The  operations  of  a  family,  for  family  use,  are 
relatively  small,  and  the  tariff  is  based  on  an  en- 
tirely different  theory. 


79 


Mr.  SWIFT.  The  theory  is,  to  get  all  that  you 
can. 

Mr.  HOGE.  Well,  now,  Mr.  Swift,  you  have  had 
the  opportunity  of  talking  here  two  or  three  days, 
and  I  will  be  obliged  to  you,  if  you  will  permit 
me  to  proceed  with  my  argument  without  further 
interruption. 

Mr.  SWIFT.     I  will  not  interrupt  you  again. 
Mr.  HOGE.     You  can  interrupt  me  at  any  time, 
Mr.  Swift,  in  regard  to  any  matter  where  you  need 
information,  and  if  I  have  it,  I  will  give  it  to  you. 
Mr.  SWIFT.     I  beg  your  pardon,  Colonel,  I  will 
not  interrupt  you  again. 

Mr.  HOGE.  (After  a  pause.)  Besides,  it  aint 
true.  It  is  not  the  fact.  Counsel  is  eternally 
indulging  in  this  kind  of  charge  and  abuse,  which 
is  based  on  nothing  but  his  own  imagination. 

He  admits  that  if  this  property  was  like  oil  or 
goods,  the  rule  would  be  different.  I  believe  I 
have  taken  down  his  very  words: 

"  If  it  were  oil,  or  wine,  or  goods,  if  it  were 
merchandise,  they  would  have  a  right  to  charge." 
Then  the  rule  would  be  different. 

I  had  supposed  that  the  property  interest  of 
the  corporation  in  this  water  was  quite  as  perfect 
as  if  it  were  oil,  or  wine,  or  goods.  It  is  the 
very  property  which  the  law  authorized  the  cor- 
poration to  acquire  and  sell.  That  is,  under  the 
very  law  of  its  creation.  There  is  not  a  word  in 
it  about  tolls,  and  his  authorities  have  no  applica- 
tion to  the  proposition  in  hand. 

The  grant  of  franchises  for  tolls  is,  of  course, 
controlled  by  the  language  of  the  grant.  The 


80 


toll  is  to  be  applied  to  the  very  things  which  the 
law  authorized  the  toll  to  be  charged  for.  What 
has  that  to  do  with  the  operations  of  the  corpora- 
tion in  buying  and  selling  its  property  ?  It  has 
the  same  right  to  go  into  the  market  and  sell  its 
property,  unless  restrained  by  the  operations  of 
the  provisions  of  the  law,  that  any  private  owner 
of  property  has.  It  occupies  no  different  position 
from  any  private  owner  of  property.  It  is  a  con- 
centration of  private  wealth  in  a  particular  form, 
to  carry  on  a  particular  business,  with  full  powers 
of  acquisition  and  disposition,  with  reference  to 
the  purposes  for  which  it  was  formed. 

Now,  if  your  Honors  please,  I  propose  to  say 
what  I  have  to  say  upon  this  mandamus  case. 

Now,  what  are  the  facts  upon  which  these  ques- 
tions here  involved  in  the  mandamus  case  arise, 
and  what  were  the  provisions  of  the  statute  bear- 
ing upon  it  ?  I  think,  if  your  Honors  please,  it 
will  be  found,  on  examination,  that  the  decision 
of  this  Court  heretofore  very  often  made,  involv- 
ing the  power  of  the  Board  of  Supervisors,  and 
the  effect  of  their  action  upon  the  questions  over 
which  they  have  jurisdiction,  apply  with  ten-fold 
force  to  the  facts  of  this  case  we  have  now  in 
hand,  and  to  the  provisions  of  the  Consolidation 
Act  itself — that  Act  which  created  the  Board  of 
Supervisors  a  special  tribunal,  with  powers  to  pass 
finally  and  judicially  upon  all  claims  against  the 
-city  and  county,  and  which  rendered  the  decision 
of  the  Board  binding  and  conclusive  upon  all  the 
officers  of  the  city  and  county  government. 

It  is  not  disputed,  and  could  not  be  disputed, 
that  the  Board  had  jurisdiction,  judicially,  over 


81 


every  claim  against  the  city  and  county;  the 
express  provisions  of  the  Consolidation  Act  give 
them  that  power. 

This  proceeding  was  simply  a  mandamus,  say- 
ing, or  directing,  that  the  Auditor  be  required  to 
make  certain  entries  in  his  book,  as  a  result  of  a 
certain  decision  of  the  Board  of  Supervisors,  over 
a  matter  with  regard  to  which  the  Board  had 
entire  and  full  jurisdiction. 

Now,  the  answer  of  the  Auditor  proceeds  upon 
the  theory  that  he  has  power  of  review  over  the 
decision  arid  final  action  of  the  Board  of  Super- 
visors, in  relation  to  claims  against  the  city  and 
county;  that,  although  the  Board  may  allow  and 
order  paid  a  claim,  he  may  refuse  to  act,  because 
he  may  be  of  the  opinion  that  the  Board  acted  in 
insufficient  evidence  —  that  the  Board  decided 
wrongly  in  the  exercise  of  their  powers,  though 
the  action  was  upon  final  review  by  them  on  an 
appeal.  His  theory  is  that  their  decision  does 
not  bind  him  at  all — that  he  is  at  liberty  to  go 
behind  it.  Now,  that  is  their  proposition  and 
their  entire  answer. 

According  to  our  theory  of  the  Consolidation 
Act  and  its  provisions,  the  Board  of  Supervisors 
is  a  governing  body  of  the  last  resort,  with  re- 
spect to  every  matter  pertaining  to  the  city's 
interest;  and  after  the  proceedings  shall  have 
been  had,  as  in  this  case,  the  action  of  the  Board, 
under  the  powers  given  it,  is  conclusive,  and  no 
authority  is  given  by  the  provisions  of  the  Act  to 
any  subordinate  officer  to  review  the  action  of 
the  Board  of  Supervisors  upon  matters  within 
their  jurisdiction  after  the  final  appeal. 


82 


Now  then,  Article  5,  of  Section  70,  of  the 
Consolidation  Act — I  will  give  your  Honors  the 
substance  of  these  sections,  without  reading 
them — gives  the  Board  the  power  to  hear  and 
determine  appeals  over  the  executive  officers  of 
the  city  and  county,  in  the  cases  provided  for  in 
the  Act.  But  in  all  cases  of  appeal  taken  to  the 
Board  of  Supervisors,  from  the  order  or  decision 
made  by  any  other  officer  or  officers,  such  officer 
shall  furnish  the  Board  of  Supervisors  with  a 
statement  of  the  reasons  for  the  order  or  decision 
appealed  from;  and  the  party  appealing  shall 
also  be  heard  briefly,  and  without  the  observing 
of  any  technical  rules  or  other  formalities,  before 
the  Board  of  Supervisors,  in  answer  to  the  officer 
rejecting  any  claim,  in  regard  to  the  justice  of 
the  decision.  The  Board  shall  endeavor  to  ascer- 
tain the  true  state  of  the  case,  by  inquiry,  with- 
out delay,  and  shall  then  finally  determine  upon 
the  matter. 

This  section,  then,  if  your  Honors  please,  evi- 
dently intends  to  give  the  Board  the  power  of 
official  decision,  without  reference  to  any  formal- 
ities or  technicalities,  such  as  would  be  observed 
in  a  Court  of  justice.  It  gives  to  the  Board  a 
power  of  official  review  of  the  decision  in  any 
case,  of  any  officers  of  the  city,  on  a  claim  passing 
through  these  channels. 

But  it.  does  not  stop  at  that.  The  92d  Section 
provides  that  if  any  person  feel  aggrieved  by  the 
decision  of  the  Auditor,  or  other  officer,  in  the 
rejection  or  refusal  to  approve  or  allow  any  de- 
mand upon  the  treasury,  presented  by  such 
person,  he  may  appeal  and  have  the  same  passed 


83 


upon  by  the  Board,  whose  decision  thereon  shall 
be  final.  Arid  if  the  Board  approve  and  allow, 
the  demand  due  shall  afterwards  be  presented  to 
the  Auditor,  and  entered  in  a  proper  book,  in  like 
manner  as  every  demand  allowed  by  law;  and  a 
corresponding  endorsement  must  be  made  upon 
every  claim  or  bill  by  the  Auditor,  in  due  form, 
before  it  can  be  paid.  This  must  be  done,  before 
a  claimant  is  in  any  position  to  pursue  his  legal 
rights  at  all.  He  cannot  take  another  step 
towards  procuring  the  payment  of  his  claim  until 
this  is  done. 

Then  comes  the  ninety-third  Section.  TJiis 
provides,  that,  in  all  such  appeals,  the  Board  of 
Supervisors  shall  call  to  its  aid  the  law  officer  of 
the  government, — the  District  Attorney, — and 
shall  require  his  opinion,  in  writing,  which  shall 
be  read  and  filed.  And  then  on  such  an  appeal, 
and  in  all  cases  of  approval  and  allowance  of  any 
such  demand,  a  vote  shall  by  taken  by  ayes  and 
noes  and  entered  upon  the  records. 

Now,  then,  it  seems  to  me  that  we  have  in  this 
section  the  whole  scheme  leading  to  the  final 
action  of  the  authorities  of  the  city  government 
upon  all  these  questions.  And  these  provisions 
of  the  Consolidation  Act  cover  entirely  the  case 
in  hand,  completely  and  finally. 

Now,  then,  to  hold  that,  notwithstanding  these 
provisions  of  law,  the  Auditor  can  defy  the  Board 
of  Supervisors,  and  can  set  up  his  opinion  against 
that  of  the  Board — contrary  to  their  action  and 
final  decision — contrary  to  the  determination  that 
they  were  necessarily  bound  to  make  in  the  man- 
ner prescribed — they  inquiring  into  and  deciding 


84 

all  questions  having  relation  to  the  claim — all 
questions  of  law  and  fact — seems  to  me  ridiculous 
in  the  extreme.  If  that  be  so,  then  this  execu- 
tive officer  has  centred  in  himself  all  the  powers 
of  the  Board  of  Supervisors — all  the  powers  of  the 
city  and  county  government.  And  the  city  gov- 
ernment must  stop  and  stand  still,  unless  their 
action  coincides  in  all  respects  with  the  action 
which  is  justified  in  the  opinion  of  the  Auditor  of 
the  City  and  County  of  San  Francisco. 

Of  course  we  have  been  contending  all  along 
through  the  progress  of  this  case  that  this  final 
decision  of  the  Board  of  Supervisors  leaves  the 
Auditor  as  a  mere  ministerial  agent  to  carry  out 
the  decision  of  the  Board.  We  contend  that  the 
question  as  to  whether  this  or  that  claim  should 
be  allowed,  was  precisely  the  question  that  was 
submitted  by  the  law  to  the  final  decision  of  the 
Board  of  Supervisors.  And  that  law  provided  that 
their  decision  should  be  final  and  conclusive,  in 
terms.  And  in  order  to  enable  the  Board  to  take 
this  action  under  standingly,  and  with  due  refer- 
ence and  respect  to  the  law,  they  are  required  to 
consult  the  law  officer  of  the  government  and  to 
take  his  opinion  in  writing,  filing  it  and  voting 
upon  it,  or  upon  the  claim  thereafter,  by  yeas  and 
nays.  And  to  contend  that  after  that  a  right  of 
review  still  remains  with  the  Auditor, — that  there 
is  any  room  then  for  him  to  exercise  an  honest 
judgment  or  discretion  in  the  premises  against  the 
conclusive  action  of  the  Board,  so  far  as  it  is  con- 
cerned, seems  to  me  a  most  extraordinary  propo- 
sition,— something  which  amounts  to  a  plain  inno- 
vation upon  the  letter  of  this  law. 


85 


In  my  judgment,  the  propositions  here  in- 
volved are  covered  by  the  previous  decisions  of 
the  Court.  The  case  of  Waugh  vs.  Chauncey,  et 
al.,  13  Cal.,  11,  is  a  case  in  hand.  I  have  an  ab- 
stract of  it  here,  if  I  can  find  it.  This  Court  said 
there  :  "  The  Board  of  Supervisors  of  the  county 
is  a  special  tribunal,  with  mixed  powers — admin- 
istrative, legislative,  and  judicial.  A  jurisdiction 
over  roads,  ferries,  and  bridges  is  given  to  it  by 
the  State.  Its  judgments  or  orders  cannot  be  at- 
tached collaterally  an}^  more  than  the  judgments 
of  Courts  of  Record."  Its  judgment  upon  mat- 
ters committed  to  it  is  conclusive.  ''Its  judg- 
ment or  orders  cannot  be  collaterally  impeached; 
whether  it  acted  upon  sufficient  or  insufficient 
proof,  regular  or  irregular,  the  decision  is  final 
and  conclusive." 

And  so  in  the  case  of  Tilden  vs.  the  Board  of 
Supervisors  of  Sacramento  County,  41  Cal.,  p.  68. 
There,  in  that  case,  the  Board  of  Supervisors  re- 
jected a  claim.  Mr.  Tilden  then  obtained  a  writ 
of  mandamus  from  the  court  below,  commanding 
the  Board  to  allow  a  specified  portion  of  the 
claim.  From  this  judgment  the  Board  sought  an 
appeal.  The  Court  held,  when  the  Board  acted 
judicially  on  a  claim  a  writ  of  mandate  would  not 
be  issued  to  reverse  or  review  its  judgment. 

In  our  case  the  Board  allowed  the  claim  and 
ordered  it  paid  ;  and  our  application  was  for  a 
mandamus  to  compel  the  Auditor  to  do  his  min- 
isterial duty  and  make  the  proper  entries  as  di- 
rected by  law.  Whereas  he  seeks  to  review  and 
reverse  the  opinion  and  judgment  of  the  Board. 
In  this  other  case  the  Board  rejected  the  claim. 


86 


In  one  case  they  allow  it  ;  but  in  no  other  case 
can  the  matter  be  investigated  on  mandamus.  The 
question  is  decided  to  be  foreclosed. 

In  the  case  of  the  Truckee  and  Tahoe  Turnpike 
Co.  vs.  J.  B.  Campbell,  44  Gal.,  p.  89,  the  Court 
say;  "It  will  not  be  contended  that  the  Board 
did  not  possess  competent  authority  to  determine 
whether  all  the  requisite  facts  existed,  and 
whether  the  corporation  had  performed  all  the 
acts  necessary  on  its  part  to  entitle  it  to  the  grant 
of  the  right  to  collect  tolls.  The  authority  of  the 
Board  being  conceded,  the  question  whether  the 
Board  erred  in  its  exercise  cannot  be  raised  by  a 
private  person  ;  and,  clearly,  the  inquiring  will 
not  be  entertained  in  a  collateral  proceeding." 

It  appears  to  me  that  these  authorities  are 
directly  applicable. 

I  am  not  discussing  the  question  of  total  want 
of  power  in  the  Board  to  allow  this  claim  upon 
the  theory  contended  for  here:  that  they  are  en- 
titled to  this  water  free  of  charge  by  the  opera- 
tion of  provision  of  the  fourth  section  of  the  Act 
of  1858.  We  have  already  discussed  that.  My 
argument  is  now  aimed  at  this  other  proposi- 
tion, that  they  cannot  go  behind  the  decision  of 
the  Board  of  Supervisors,  upon  questions  of  fact, 
and  re-examine  in  matters  of  this  kind;  that  they 
cannot  inquire  into  the  regularity  or  irregularity 
of  the  action  of  the  Board.  They  cannot  go  be- 
hind the  action  of  the  Board,  and  say  that  it 
didn't  do  this  or  that  which  was  proper;  that  the 
Board  did  not  pursue,  literally,  the  directions  of 
the  statute.  We  contend  they  cannot  inquire 
into  the  terms  or  matters  for  which  water  was 


87 


furnished,  such  being  matters  of  fact  necessarily 
before  the  Board  and  necessarily  included  in  its 
decision.  It  is  to  these  objections  that  I  am  ad- 
dressing this  argument.  I  am  insisting  that  the 
decision  of  the  Board  of  Supervisors  is  necessarily 
final  and  conclusive  as  its  jurisdiction  over  the 
entire  claim  and  authority  to  investigate  into  all 
the  facts  connected  with  it;  and  that  this  must  be 
so  under  a  necessary  construction  of  the  Act. 
The  action  of  the  Board  is  conclusive  upon  the 
Auditor.  He  has  but  a  ministerial  duty  to  per- 
form. He  has  no  power  of  review  over  the  facts 
upon  which  the  Board  acted  and  predicated  their 
decision.  Nor  has  he  a  right  of  construction 
over  the  law. 

If  the  decision  of  the  Board  is  subject  to  review, 
the  appeal  must  be  to  the  courts,  in  the  proper 
case,  and  with  the  proper  parties;  but  of  this 
hereafter. 

The  Auditor  must  perform  his  duty  in  the 
premises,  as  I  have  already  suggested,  before  the 
claimant  is  in  any  position  to  enforce  his  rights 
in  any  way. 

The  answer,  in  this  case,  attempts  to  go  behind 
this  decision  of  the  Board  upon  the  facts.  It 
questions  the  reasonableness  of  the  charges  of  the 
company,  and  whether  it  had  furnished  the  water 
as  charged.  And  this  is  a  part  of  counsel's  argu- 
ment— that  the  charges  were  excessive.  Was  not 
that  a  question  of  fact  to  be  submitted  to  the 
Board  of  Supervisors  on  which  their  decision  is 
conclusive?  The  very  facts  upon  which  they 
were  passing,  embraced  all  these  questions,  or 
affected  them  —  had  reference  to  them;  and  the 


88 


whole  thing  was  conclusively  decided  by  the  final 
action  of  the  Board  proving  and  allowing  the 
claim  which  was  brought  up  to  them  on  appeal. 
These  are  the  very  facts,  I  say,  upon  which  the 
Board  acted  when  they  passed  upon  the  account 
originally;  and  then  it  is  brought  up  again  on 
appeal  from  the  Auditor's  decision. 

The  question  of  the  power  which  they  have 
attempted  to  raise  in  relation  to  the  4th  Section, 
I  have  already  discussed.  I  do  not  propose  to 
discuss  it  any  further. 

The  answer  admits  the  fact  that  all  this  water 
for  which  the  account  was  entered  and  claimed 
was  furnished,  but  avoids  it,  or  attempts  to  avoid 
it,  because,  as  they  say  in  the  answer,  the  com- 
pany was  bound  to  furnish  water  to  the  city  free 
of  charge.  Upon  this  question,  also,  the  Board  of 
Supervisors  passed. 

The  answer  enumerates  several  purposes  to 
which  the  city  applied  the  water;  but  contends 
that  the  company  was  bound  to  furnish  it  free, 
under  the  provision  of  the  4th  Section  of  the  Act 
referred  to,  which  provision  requires  them  to  fur- 
nish water  for  fires,  and  in  case  of  other  great 
necessity.  And  that  is  the  only  provision  they  do 
advance.  The  whole  theory  before  the  Auditor 
was,  that  this  water  was  bound  to  be  furnished 
free  ;  that  the  city  ought  to  have  it  of  right,  with- 
out compensation.  And  upon  that  theory,  the 
Auditor  said:  the  Board  exceeded  its  power  and 
allowed  an  amount  which  they  had  no  right  to 
grant.  It  is  a  question  of  power  based  on  that 
ground,  and  on  that  alone;  that  this  was  free 
water,  and  could  not  be  charged  for;  and,  there- 


fore,  the  Board  exceeded  its  powers  in  passing  the 
account — allowing  the  account  for  water  which 
belonged  to  the  city,  as  the  counsel  contends. 

It  is  attempted  to  raise  another  proposition, 
and  complicate  the  matter  by  asserting  that  the 
Treasurer  could  not  act  and  pay  this  claim  for 
precisely  the  same  reason;  that  the  Treasurer 
would  raise  the  same  point  and  had  the  right  to 
do  so ;  that  the  Treasurer  was  not  bound  by  the 
decision  of  the  Board  on  appeal.  By  the  express 
language  of  the  Consolidation  Acts,  which  is  still 
binding  on  all  the  officers  of  the  city  government, 
the  final  power  of  decision  is  lodged  in  the  Board 
of  Supervisors. 

I  say  that  the  Treasurer  has  nothing  whatever 
to  do  with  this  question.  The  Auditor  cannot 
defend  his  refusal  to  do  his  duty  in  this  manner. 
He  cannot  refuse  to  act  in  obedience  to  the  exact 
command  of  the  Consolidation  Act,  which  action 
is  necessary  in  order  to  put  these  parties  in  a 
position  to  prosecute  their  claim.  Whatever  may 
be  said  with  reference  to  the  Treasurer's  action,  it 
does  not  help  the  Auditor  in  this  case.  It  does 
not  help  him  to  say  that  the  Treasurer  would  not 
pay  us  if  he  did  this  ministerial  duty  and  made 
the  proper  entries  in  his  books.  In  fact  the 
Treasurer  is  as  much  bound  by  the  decision  of  the 
Board  on  the  appeal  as  the  Auditor.  But  with 
that  matter  neither  the  Auditor  nor  ourselves 
have  anything  now  to  do  by  way  of  consideration. 

As  a  matter-of-fact  we  cannot  take  a  single  step 
further  towards  procuring  the  payment  of  this 
claim  until  the  proper  action  of  the  Auditor  is 
had  by  way  of  entry  upon  the  records  of  his  office. 


90 


Because  it  is  the  express  language  of  the  Consoli- 
dation Act  that  this  entry  must  be  made — that 
this  action  must  be  had  on  the  part  of  the  Auditor 
before  the  claimant  will  be  in  a  position  to  place 
his  demand  before  the  Treasurer  at  all. 

One  other  proposition  made  in  this  case  was 
that  the  Board  of  Supervisors  had  repealed  this 
resolution;  which  I  shall  have  something  to  say 
about  at  the  proper  time,  if  I  have  an  opportunity 
of  discussing  it. 

Mr.  SWIFT.  The  appeal  is  taken  from  the  order 
overruling  the  demurrer. 

Mr.  HOGE.  Yes,  sir;  Judge  Dwinelle  decided 
that  there  was  no  ground  of  defense  in  the  answer; 
that  the  facts  set  up  there  as  an  answer  did  not 
state  a  defense.  The  appeal  is  taken  from  that 
order.  There  was  a  demurrer  to  the  answer. 

Mr.  SWIFT.     And  to  the  complaint  also. 

Mr.  HOGE.  Yes,  sir;  to  the  complaint  also. 
Both,  Though  I  take  it  that  the  demurrer  to  the 
complaint  was  disposed  of  by  the  answer. 

1  will  not  stop  to  go  over  all  these  authorities 
which  I  have  here.  I  think  they  are  all  cited  in 
the  brief  sustaining  the  propositions  which  I  have 
made;  but  I  shall  not  consume  the  time  of  your 
Honors  to  read  them. 

There  was  a  point  made  in  the  argument  of  Mr. 
Swift,  for  the  purpose  of  showing  that  the  Board 
of  Supervisors  had  exceeded  its  powers — that 
there  was  an  item  for  water  that  was  used  by  the 
schools.  On  that  I  desire  to  say  a  few  words. 

Now,  in  point  of  fact,  the  pleading  in  this  man- 
damus case  don't  raise  any  such  question  at  all. 
It  goes  entirely  upon  the  ground  that  the  water 


91 


was  furnished  the  city  for  the  indispensable  pur- 
poses of  the  municipality,  under  the  provision  of 
the  4th  Section  of  the  Act  of  1858,  under  which 
the  company  was  incorporated,  and  was  therefore 
to  be  furnished  free  of  charge.  Now,  let  us  see 
if  that  is  not  so  ;  and  you  Honors  will  find,  if  you 
read  this  answer,  that  every  one  of  these  particu- 
lar defenses  is  based  on  that  theory,  entirely  and 
alone. 

Mr.  Justice  McKiNSTRY.  Does  the  answer  in 
that  case  allege  anything  in  relation  to  the  rates? 

Mr.  HOGE.     No,  sir. 

Mr.  SWIFT.  I  beg  your  pardon.  It  says  that 
no  rates  have  been  fixed. 

Mr.  HOGE.     I  think  not. 

Mr.  SWIFT.     You  are  mistaken,  Colonel. 

Mr.  HOGE.  Well,  I  don't  recollect;  I  don't 
recollect  that  the  answer  says  anything  further 
than  to  allege  that  the  charges  are  excessive. 

Mr.  SWIFT.  It  says  they  were  never  fixed.  It 
says  the  rates  were  never  fixed. 

Mr.  HOGE.  Let  us  see.  (Examining.)  I  don't 
recollect  that. 

Mr.  Justice  McKiNSTRY.  Perhaps  it  is  not 
worth  while  to  stop  and  examine  in  regard  to 
that.  I  thought  you  could  state  at  once. 

Mr.  SWIFT.  It  will  be  found  on  page  forty-six. 
(Reading.) 

Mr.  HOGE.  Very  well;  I  had  forgotten  that 
that  was  there. 

I  was  speaking  now  on  the  subject  of  this 
charge  or  itemized  separation  of  a  charge  for 
schools.  I  have  said  all  that  I  want  to  say  on  the 
subject  of  rates.  I  don't  want  to  repeat  that. 


92 


Now.  what  is  alleged  in  respect  -to  this  matter  ? 
(Reading.) 

Here  is  the  item,  separated,  amounting  as  they 
say,  to  $13,800.  That  is  the  form  in  which  it  is 
placed  as  to  the  school  department ;  and  as  to 
every  other  purpose  for  which  it  was  alleged 
water  was  used,  it  raises  the  question  in  the  same 
way. 

It  is  alleged  that  this  is  free  water,  and  that 
therefore  the  Board  exceeded  its  power  and  right 
in  auditing  this  bill,  because  it  was  free  water — 
not  because  the  Board  had  not  power  to  buy 
water,  but  because  it  was  free  water,  and  that 
therefore  the  Board  could  not  buy  this  water. 

I  say  that  the  particular  purposes  for  which 
the  water  was  furnished  is  a  matter  with  which 
this  petitioner  has  nothing  to  do.  Our  account 
was  for  water  furnished  to  the  City  and  County 
of  San  Francisco  for  municipal  purposes,  and  the 
city  agreed  to  the  charge  for  it,  and  allowed  it, 
and  ordered  the  bill  paid.  It  makes  no  difference 
how  or  where  it  was  used  in  the  municipal  gov- 
ernment. It  is  a  matter  of  entire  indifference 
how  the  city  or  its  officers  used  this  water,  or 
applied  it  to  different  municipal  purposes.  That 
does  not  concern  the  company  who  furnished  the 
water  to  the  city  or  to  the  city  officers,  or  for  the 
claim  of  the  company  or  the  validity  of  the  action 
of  the  Board  in  its  final  decision.  The  company 
did  not  inquire  into  the  particular  purposes  for 
which  the  water  was  used,  and  it  was  not  neces- 
sary that  it  should  do  so.  This  does  not  affect 
the  claim,  nor  the  validity  of  the  action  of  the 


93 


Board  in  any  respect.  They  had  the  right  to 
determine  this  matter,  and  they  did  determine  it. 

This  is  not  a  claim  against  the  Board  of  Edu- 
cation. It  is  not  sought  or  attempted  to  inter- 
fere with  the  funds  of  the  Board  of  Education  in 
any  way.  It  *is  only  for  claims  against  its  own 
funds  that  that  Board  has  any  jurisdiction  under 
the  Consolidation  Act.  The  Board  of  Education 
has  nothing  to  do  with  this  claim.  When  their 
funds  are  called  upon  by  any  claim,  they  have  a 
right  of  action;  they  will  pass  upon  such  a  claim. 
But  we  have  not  brought  them  here  as  debtors, 
and  they  have  nothing  to  do  with  this  question. 

The  city  could  not  in  the  present  aspect  of  the 
case,  raise  this  question.  It  takes  the  water  of 
the  company  and  uses  it.  and  then  it  allows  an 
account  for  it  which  forecloses  that  question  in 
regard  to  the  matter.  It  seems  to  me  that  upon 
these  facts  the  decision  of  the  Board  is  conclusive 
and  that  the  thing  could  not  be  brought  up  here 
for  question. 

Why,  if  your  Honors  please,  these  were  the 
very  facts,  among  others,  into  which  the  Board 
were  to  inquire,  and  into  which  they  did  un- 
doubtedly inquire. 

Now  a  great  deal  has  been  said,  if  your  Honors 
please,  in  relation  to  this  authorization  No.  1132. 
It  was  not  published,  it  is  said.  And  attention 
was  drawn  to  the  fact  that  it  was  only  for  twenty- 
three  months,  as  is  alleged; — that  there  was  a 
variation  between  the  appropriation,  etc. 

Now,  if  your  Honors  please,  I  think  a  few  words 
will  put  that  matter  in  a  very  clear  light,  so  that 


94 


your  Honors  will  be  enabled  to  understand  it 
thoroughly  and  completely. 

The  original  bill  presented  by  this  company  to 
the  city  was  for  $103,500.  It  was  for  furnishing 
water  upon  the  orders  of  the  municipal  authori- 
ties for  municipal  purposes  from  the  first  of  Feb- 
ruary 1869,  to  November  third,  1872, — forty-six 
months;  $2250  per  month,  which  just  makes  the 
sum  of  $103,500.  Now  upon  this  account  thus 
presented,  was  based  the  action  of  the  Board  of 
Supervisors  in  the  passage  of  Order  1132. 

The  history  of  this  account,  as  your  Honors 
will  find  it, — 1  don't  know  whether  your  Honors 
have  got  it  or  not — is. in  a  brief  filed  by  the  City 
Attorney  on  the  argument  of  this  case  in  the 
Court  below. 

You  will  see  from  that  that  this  account  takes 
the  ordinary  course  of  legislative  business  of  this 
kind. 

So  the  Board  reversed  the  action  of  the  Auditor 
and  approved  this  account,  passing  it  by  a  unani- 
mous vote. 

All  these  things  are  recited  in  the  petition,  I 
believe,  with  the  exception  of  that  first  vote,  and 
not  denied. 

Now  with  reference  to  this  account,  something 
was  said  about  section  68.  One  moment  on  that 
subject.  Let  us  see  whether  it  has  any  applica- 
tion or  not.  This  is  the  ordinary  mode  of  pro- 
ceeding upon  all  claims  presented  to  the  Board  of 
Supervisors.  And  it  is  in  direct  conformity  with 
section  68  of  the  Consolidation  Act.  (Reading) : 
Every  ordinance  or  resolution  of 
the  Board  of  Supervisors,  providing  for  any  specific 


95 


improvement,  the  granting  of  any  privilege,  or 
involving  the  lease  or  other  appropriation  of  pub- 
lic property,  or  the  expenditures  of  public  moneys 
(except  for  less  sums  than  five  hundred  dollars), 
or  laying  tax  or  assessment,  and  every  ordinance 
or  resolution  imposing  a  new  duty  or  penalty, 
shall,  after  its  introduction  in  the  Board,  be  pub- 
lished, with  the  ayes  and  nays,  in  some  city  daily 
paper,  at  least  five  successive  days  before  final 
action  by  the  Board  upon  the  same;  and  every 
such  ordinance,  after  the  same  shall  pass  the 
Board,  shall,  before  it  takes  effect,  be  presented 
to  the  President  of  the  Board  for  his  approval. 
If  he  approves,  he  will  sign  it;  if  not,  he  shall 
return  it,  within  ten  days,  to  the  Board,  with  his 
objections  in  writing. 

"  The  Board  shall  then  enter  the  objections  on 
the  journal  and  publish  them  in  some  city  news- 
paper. If  at  any  stated  meeting  thereafter  two- 
thirds  of  all  the  members  elected  to  the  Board 
vote  for  such  ordinance  or  resolution,  it  shall 
then,  despite  the  objection  of  the  President,  be- 
come valid.  Should  any  such  ordinance  or  reso- 
lution not  be  returned  by  the  President  within 
ten  days  after  he  receives  it,  it  shall  become  valid 
the  same  as  if  it  had  received  his  signature." 

Now  this  is  the  only  publication  ever  required 
by  the  Act. 

Whenever  a  resolution  to  appropriate  money 
from  the  treasury  is  introduced,  and  immediately 
upon  its  introduction,  a  vote  to  print  is  taken. 
They  might  refuse  to  print,  and  reject,  right  then 
and  there,  on  the  first  introduction  of  the  pro- 
position. But  if  they  choose  they  direct  it  to  be 
published,  with  the  ayes  and  noes  on  the  order 
directing  it  to  be  published.  After  this  is  done — 
after  this  publication  is  had,  then  the  matter 
comes  back  and  comes  up  for  action  like  any 


96 


other  subject.  First  the  publication  is  to  be  made 
immediately  upon  the  introduction  of  the  claim. 
Then  it  comes  back  for  action.  Then  the  Board 
may  pass  it  or  reject  it  or  amend  it.  No  other 
publication  is  required  by  law,  nor  is  there  ever 
any  other  made  in  any  case. 

Now,  what  is  done  when  the  account  comes 
back? 

When  it  conies  back  it  is  amended  and  passed, 
and  approved  by  the  President  of  the  Board  of 
Supervisors. 

Now  there  is  no  other  publication  required  of 
the  bill,  and  there  would  be  no  sense  in  requiring 
any  other  publication. 

The  proceeding  is  analogous,  I  suppose,  to  our 
our  ordinary  legislation  in  State  Legislatures. 
First,  there  is  printed  what  is  called  a  resolution 
of  appropriation  or  a  resolution  of  intention. 
This  is  like  the  publication  of  a  bill  before  a 
Legislature  for  the  appropriation  of  money.  It 
is  published  and  laid  on  the  desks  of  members 
for  the  information  of  members,  and  after  it  has 
been  published,  and  when  it  is  reached  in  order, 
it  is  taken  up  and  acted  upon.  The  same  in  this 
case.  Then  it  is  either  rejected  or  passed  or 
amended.  Here,  it  was  amended.  This  is  pre- 
cisely the  course  which  this  resolution  took,  as 
appears  by  the  record.  As  I  say,  the  proceeding 
is  analogous  to  that  in  our  Legislatures;  and  I 
presume  it  was  modeled  after  it. 

There  is  no  question  about  the  publication  hav- 
ing been  made  in  this  first  instance — none  at  all. 
The  publication  was  for  the  appropriation  of 
$103,500.  The  Board  cut  down  the  sum  to 


97 


)2,000.  and  the  company  agreed  to  take  that 
sum.  The  original  amount  was  for  $2,500  a 
month,  which  would  amount  to  $103,500  for  the 
forty-six  months;  and  the  sum  was  cut  down  to 
$2,000  per  month,  which  would  amount  to  $92,000. 

Mr.  Justice  McKiNSTRY.  There  was  no  publica- 
tion of  the  ordinance  as  finally  passed  ? 

Mr.  HOGE.  There  was  nothing  but  this  first 
publication  of  the  ordinance  or  resolution  of 
appropriation.  That  was  published,  as  I  presume 
all  similar  publications  are  made,  for  the  informa- 
tion of  the  people.  It  attracts  the  attention  of 
the  people  to  it  ;  and  if  they  desire,  they  can 
manifest  their  sentiments  in  regard  to  it,  by  pro- 
test, or  petition,  or  otherwise;  and  after  due 
course  of  publication,  the  matter  comes  up  for 
final  action,  and  the  Board  takes  action  upon  it. 
Of  course  the  members  of  the  Board  can  be 
approached  in  the  meantime,  and  influenced  by 
argument,  or  in  any  legitimate  manner,  either  for 
or  against  the  bill.  When  the  matter  comes  back, 
it  assumes  the  form  of  law. 

There  is  nothing,  then,  but  the  first  publication 
of  the  ordinance  appropriating  the  money.  That 
publication  is  for  the  information  of  the  people. 
It  directs  attention  to  the  fact  and  the  purpose  of 
the  appropriation.  The  people  may  take  notice 
and  appear  and  protest,  if  they  so  desire.  Or  they 
can  appear  when  the  matter  comes  up  for  final 
action — when  the  Board  is  to  take  concluding 
action  on  the  subject.  And,  as  I  have  said,  the 
members  can  be  approached  and  influenced  by 
arguments  pro  and  con,  as  the  public,  which  has 
been  duly  notified,  sees  fit  to  exercise  the  privi- 


98 


lege.  Then,  by  the  subsequent  action  referred  to,  it 
assumes  the  form  of  law. 

Mr.  Justice  McKiNSTRY.  If  you  will  pardon 
me,  not  wishing  to  interrupt  your  learned  argu- 
ment, the  mingling  of  these  statutes  and  these 
ordinances  and  resolutions,  seems  to  complicate 
the  matter.  At  least,  I  am  not  certain  whether  I 
thoroughly  understand  the  statement.  Let  me 
see  if  I  do: 

There  was  a  claim  presented  to  the  Board  of 
Supervisors,  before  this  alleged  ordinance  was 
introduced;  which  claim  was  for  the  sum  of 
$103,500. 

Mr.  HOGE.  Yes,  sir;  a  claim  for  $103,500. 
Upon  that  the  first  action  took  place.  That  was 
the  basis  for  the  action. 

Mr.  Fox.  The  first  account,  as  passed  to  print, 
was  for  $103,500. 

.Mr.  Justice  McKixsiRY.  That  was  the  amount, 
taking  the  whole  estimates  for  a  given  number  of 
months  together? 

Mr.  HOGE.     Yes,  sir. 

Mr.  Justice  McKixsTRY.  This  claim  having 
been  presented,  then  an  appropriation,  or  an 
authorization  to  appropriate  money  to  the  amount 
of  $103,500  was  passed  ? 

Mr.  HOGE.  Yes,  sir.  An  authorization  or  ap- 
propriation of  money  must  be  made  whenever 
there  is  a  contemplated  disbursement  of  money 
in  excess  of  $500. 

Mr.  Justice  McKixsTRY.  The  amount  of  the 
appropriation  depends  upon  the  amount  of  the 
claim  submitted  ? 

Mr.  HOGE.     That  is  the  basis  of  the  appropria- 


99 


tion.  That  is  passed  when  the  claim  is  presented. 
That  is  the  ordinance  of  intention.  That  is  no- 
tice that  the  Board  are  going  to  entertain  this 
claim,  and  the  appropriation  is  drawn  up,  usually, 
in  accordance  with  the  amount  of  the  claim. 
Upon  the  introduction  of  any  claim,  or  of  a  cer- 
tain number  of  claims  aggregating  so  much,  the 
Board  take  and  vote  as  to  whether  the  appropria- 
tion of  the  ordinance  shall  be  published  or  not; 
and  when  that  ordinance  has  been  published  five 
days,  then  the  Board  are  competent  to  act  upon 
it  directly. 

Mr.  Justice  McKiwsrRY.  Well,  you  understand 
that,  in  any  case,  a  claim  of  a  specific  nature  must 
be  first  presented,  before  there  is  authority  to 
appropriate  moneys  at  all. 

Mr.  HOGE.  I  presume  that  the  appropriation 
must  be  made  according  to  the  amount  of  the 
claim  or  claims — or  approximately  so — before  the 
Board  will  take  the  first  action  in  the  premises. 
At  least,  that  is  the  custom,  according  to  my 
information.  I  don't  suppose,  however,  that 
there  is  anything  in  the  law,  or  in  the  rules  of 
the  Board,  which  prescribes  an  identity  of  the 
amount  in  the  claim  presented  and  the  appropria- 
tion and  the  amount  finally  passed.  But  it  is 
customary  to  follow  the  introduction  of  a  claim, 
if  it  be  on  its  face  a  valid  one,  with  an  appropria- 
tion fitting  the  amount  therein  specified. 

Mr.  Justice  McKiNSTRY.  In  this  case,  the 
amount  was  presented  for  $103,500  ? 

Mr.  HOGE.     Yes,  sir. 

Mr.  Justice  McKiNSTRY.  Is  there  anything  to 
prevent  the  Board  from  increasing  the  amount 


100 


finally  passed  upon  in  the  bill,  after  the  publica- 
tion of  this  appropriation,  or  notice  of  the  appro- 
priation ? 

Mr.  HOGE.  Well,  it  is  not  very  likely  that  the 
Board  would  exceed  the  amount  fixed  in  the 
original  ordinance  of  appropriation,  when  they 
come  to  formally  act  upon  the  bill.  They  may 
certainly  make  an  appropriation,  finally — that  is, 
by  the  passage  of  the  final  bill — less  than  that  in 
the  original  ordinance  of  intention.  Certainly 
the  appropriation  does  not  carry  with  it,  neces- 
sarily, a  minimum  limit  for  the  amount  to  be  acted 
upon.  The  Board  have  power  to  appropriate 
moneys  for  the  payment  of  any  claim  not  exceed- 
ing $500,  at  the  time  the  bill  is  introduced,  at 
the  time  the  claim  is  submitted.  But  on  all  claims 
exceeding  $500,  they  must  first  pass  an  appropri- 
ation bill.  It  cannot  affect  the  validity  of  that 
appropriation  if  the  sum  finally  agreed  to  be  paid, 
and  specified  in  the  final  passage  of  the  claim, 
does  not  exceed  the  amount  specified  in  the  appro- 
priation notice.  Here  in  this  case,  there  was  an 
appropriation  of  $103,500,  and  the  claim  was 
finally  passed  for  $92.000,  much  less  than  the 
amount  of  the  original  appropriation.  Whether 
the  actual  expenditure  of  money  shall  come  up  to 
the  sum  of  $103,500,  or  shall  fall  short  of  it, 
depends  on  the  ultimate  action  of  the  Board  on 
the  account.  At  this  stage,  they  have  taken  no 
absolute  action  on  the  account  at  all.  The  pre- 
sentation of  the  account  sets  the  Board  in  action — 
in  motion.  When  the  account  is  presented,  after 
the  five  days  shall  have  expired,  they  may  approve 
or  reject  the  claim. 


101 


Mr.  Justice  McKiNSTRY.  But  there  is  no  at- 
tempt at  that  time  to  decide  whether  the  appro- 
priation finally,  the  auditing  or  accepting  or 
approving  finally,  shall  be  within  the  $103,500? 

Mr.  HOGE.  The  Board  determine  that,  when 
they  finally  act  upon  •  the  claim.  This  account 
said  $103,500.  The  Board  finally  passed  the  claim 
for  $92,000.  They  refused  to  pass  upon  the 
account  for  more  than  $92,000.  And  the  com- 
pany agreed  to  take  $92,000.  And  when  the  com- 
pany ascertained  the  determination  of  the  Board, 
they  presented  this  claim  in  the  sum  which  was 
satisfactory,  to  wit,  $92,000. 

Mr.  Fox.  The  amount  finally  passed,  cannot 
exceed  the  amount  of  the  original  appropriation. 

Mr.  Justice  McKiNSTRY.  Well,  do  you  say  that 
the  words,  "  not  to  exceed  "  are  in  the  appropria- 
tion ordinance  ? — and  do  they  affect  the  appropria- 
tion in  such  a  way  as  to  fix  the  exact  amount  of 
the  claim  as  ultimately  acted  upon  by  the  Board  ? 

Mr.  Fox.  We  contend  that  it  does  not  effect 
the  power  of  the  Board  to  finally  appropriate  any 
sum  less  than  the  amount  put  in  the  original  ordi- 
nance of  intention. 

Mr.  HOGE.  It  is  an  appropriation  of  a  given 
amount  of  money,  based  upon  a  certain  claim  and 
manifestly  for  a  specified  object.  The  amount  of 
the  claim  finally  acted  upon,  may  reach  $103,500; 
or  the  Board  may  pay  out  less  than  that  amount 
under  that  publication.  But  the  Board  may  not 
pay  more,  it  appears.  Indeed,  that  would  be  the 
construction  or  the  limit,  without  any  specific 
words  to  that  effect.  There  is  an  appropriation 
of  so  much  money  in  the  treasury  which  may  or 


102 


may  not  be  required  for  a  certain  claim  or  claims. 
The  amount  may  not  be  called  upon  at  all;  it  will 
not  be  until  the  action  of  the  Board  after  the  five 
days  shall  have  expired. 

Mr.  Justice  CROCKETT.  Is  there  any  provision 
in  the  Consolidation  Act  whereby  the  appropriation 
must  be  made  explicit  before  or  after  an  account 
is  passed  upon  and  allowed  by  the  Board? 

Mr.  HOGE.     None  further  than  has  been  stated. 

Mr.  Justice  CROCKETT.  But  the  original  notice 
of  intention,  or  appropriation  ordinance,  must 
correspond  to  the  original  amount  of  the  claim 
or  claims  presented  to  the  Board. 

Mr.  HOGE.  That  is  the  practice.  This  appro- 
priation is  a  particular  legislative  action.  It  is 
analogous  to  the  action  of  our  legislative  bodies 
or  executive  officers.  The  appropriation  itself  is 
legislative  action  ;  then  the  approval  of  the  ac- 
count, directing  the  drawing  out  of  the  money 
under  that  appropriation,  is  judicial  action.  This 
is  done  afterwards,  before  any  money  can  be  actu- 
ally taken  out  of  the  treasury. 

The  Board  is  set  in  motion  when  claims  are 
presented  to  it  for  allowance  ;  that  is,  if  they 
think  they  are  right,  or  if  Ihey  appear  to  be  valid 
upon  their  face.  They  might,  it  is  very  true,  refuse 
to  make  any  appropriation  whatever  in  connection 
with  any  given  claim  or  claims.  They  could 
reject  a  bill,  as  I  have  stated,  just  as  a  legislative 
body  could,  on  the  first  reading  of  a  bill,  order  it 
rejected.  There  is  an  express  motion  in  the  pre- 
liminary minutes  to  that  effect. 

In  this,  the  legislative  action  of  the  Board  of 
Supervisors  corresponds  to  the  rules  of  practice 


103 


in  all  legislative  bodies.  They  might  reject  at  the 
outset ;  but  it  is  not  usual  to  do  so.  It  is  usual 
to  make  an  appropriation  corresponding  with  the 
amount  of  the  claim.  It  is  not  considered  re- 
spectful in  legislative  bodies,  to  move  the  rejec- 
tion of  a  bill  on  its  introduction;  and  unless  it  is 
palpably  wrong,  such  a  motion  never  will  be 
made  by  any  member  of  a  legislative  body,  who 
has  proper  courteous  respect  for  his  fellow-mem- 
bers. The  respectful  and  ordinary  method  on  the 
introduction  of  a  bill,  as  your  Honors  well  know, 
is  to  send  it  to  a  committee,  although  the  Legis- 
lature can,  in  either  House,  reject  it  forthwith, 
on  presentation.  But  the  bill  is  usually  sent  to  a 
committee.  There  it  is  investigated — if  it  is  con- 
sidered worthy  of  investigation — and  reported 
upon,  etc.,  taking  the  usual  familiarly  known 
course  of  legislative  proceedings. 

The  action  upon  this  appropriation  bill  or  ordi- 
nance, in  the  Board  of  Supervisors,  is  analagous 
to  that  first  action  which  takes  place  in  all  legis- 
lative bodies,  when  any  measure  is  introduced  by 
a  member  of  the  Assembly  or  the  Senate. 

The  further  analogy  brings  in  the  executive 
officers  of  the  State.  That  is  to  say.  there  is  an 
appropriation  bill  passed  by  the  Legislature  and 
signed  by  the  Governor.  Having  become  a  law, 
the  executive  officers  of  the  State,  under  it,  are 
empowered  to  determine  upon  the  validity  and 
justice  of  all  claims  which  may  be  presented  un- 
der the  several  funds  of  the  State;  and  with  their 
auditing  the  bills  so  passed. 

Now,  the  Board  of  Supervisors  act  legisla- 
tively and  judicially,  in  the  manner  which  I  have 


104 


suggested.  First,  the  appropriation  bill,  and  then 
the  explicit  consideration  and  passage  of  the 
claims  coming  under  that  appropriation,  and  on 
account  of  which  the  appropriation  is  declared  to 
have  been  made. 

Mr.  Justice  CROCKETT.  I  should  have  con- 
sidered that  the  most  appropriate  method  and 
order  of  the  proceedings  would  have  been  to  first 
pass  upon  an  account — consider  and  determine 
how  much  money  was  actually  needed — and  then 
pass  an  appropriation  bill  to  meet  it. 

Mr.  HOGE.  That  might  have  been  the  practice; 
but  it  is  not  the  ordinary  action  of  the  Board  of 
Supervisors.  I  do  not  suppose  that  they  are  very 
learned  men,  ordinarily,  as  legislators,  speaking 
of  them  intentionally,  with  very  great  respect. 

But,  as  I  have  suggested,  when  they  approve  a 
bill,  they  act  judicially.  When  they  make  an 
appropriation,  they  act  as  legislators.  They  pro- 
vide a  fund  for  the  meeting  of  a  claim  or  claims 
presented  to  them.  Then  they  act  specifically 
and  directly  upon  the  particular  claim  or  claims 
to  which  the  appropriation  had  reference. 

Your  Honors  will  bear  in  mind  all  the  time, 
that  here  the  Board  refused  to  pass  upon  the 
claim  for  anymore  than  $92,000;  and  the  cor- 
poration finally  agreed  to  that  amount;  and  that 
amount  was  passed  upon  by  the  Board. 

Mr.  Justice  CROCKETT.  You  say  they  first  pass 
an  appropriation  of  money,  and  then  pass  a  reso- 
lution or  ordinance — such  as  this  appropriating 
$92,000  —  the  original  appropriation  being  for 
$103,000.  That  would  be  making  an  appropria- 
tion outside  of  the  sum  required  to  meet  the 


105 


claim  presented  or  finally  acted  upon.  What  is 
done  with  the  surplus  ?  What  effect  does  that 
have  upon  the  appropriated  amount  which  is  not 
used  ?  Suppose  they  drew  nothing  on  account  of 
this  appropriation  ? 

Mr.  HOGE.  The  money  will  remain  there.  It 
is  like  an  Act  of  Congress  making  an  appropria- 
tion for  a  particular  purpose;  the  money  may 
never  be  drawn  out,  and  frequently  it  never  is. 
And  there  are  acts  of  Congress  innumerable  upon 
the  statute  book,  providing  for  the  use  of  money 
heretofore  appropriated  and  unemployed.  That 
is  a  very  ordinary  thing  in  Congressional  legisla- 
tion. 

Mr.  BURNETT.  There  haven't  been  any  laws  of 
that  kind  passed  Congress  during  the  last  twenty- 
five  years. 

Mr.  Justice  McKiNSTRY.  I  understand  the  sug- 
gestion on  the  other  side  to  be  this,  substantially: 
The  claim  shall  be  first  allowed.  That  is  to  say, 
the  bill  for  the  appropriation  shall  be  according 
to  the  allowed  claim,  or  according  to  the  amount 
that  is  to  be  allowed.  So  that  the  incorporation 
and  the  public  shall  have  had  an  absolute  notice 
of  the  exact  amount  of  the  bill  to  be  passed — of 
the  amount  in  the  application  on  a  claim  for  pub- 
lic moneys,  where  the  sum  is  over  $500. 

Mr.  Fox.     That  is  exactly  .what  they  did  here. 

Mr.  Justice  McKiNSTRY.  (Continuing.)  There 
is  to  be  a  certain  sum  of  money  in  the  appropria- 
tion bill  or  ordinance,  of  the  expenditure  of  which 
the  public  have  due  notice  by  due  publication. 
I  understand  the  other  side  contend,  that  in  this 
instance  there  was  not  that  publication  of  an  in- 


106 


tended  appropriation  which  was  anticipated  and 
provided  for  by  Horace  Hawes  or  some  other  of 
the  legislators  co-operating  with  him  in  the  passage 
of  the  Consolidation  Act.  I  understand  the  other 
side  to  suggest  and  contend,  that  wherever  a  sum 
greater  than  $500  is  to  be  paid  upon  any  claim, 
the  antecedent  appropriation  bill  or  ordinance 
shall  explicitly  state  the  amount  which  is  to  be 
finally  approved,  and  which  is  finally  approved; 
and  that  that  exact  sum  must  be  published  in  an 
ordinance  of  appropriation,  before  a  bill  can  be 
legally  passed,  or  a  claim  legally  allowed,  by  the 
Board  under  an  appropriation  notice.  Now,  here 
is  a  notice  for  the  sum  of  $103,500 — a  notice  of 
appropriation,  for  a  certain  purpose,  of  that 
amount.  And  here  is  a  final  passage  of  a  claim 
for  $92,000,  for  the  object  specified  in  the  claim, 
which  was  originally  for  $103,500.  And  no  ordi- 
nance of  intention  or  appropriation  for  $92,000  was 
ever  printed.  Of  this  the  other  side  complain. 

Of  course  it  all  turns  upon  the  construction  to 
be  given  to  the  statute.  I  understand  the  view 
on  the  other  side  to  be,  that  the  sum  of  money 
in  the  bill  that  is  finally  passed,  must  be  named 
in  the  appropriation  ordinance  that  is  printed. 

Mr.  Justice  RHODES.  There  are  these  two  sets 
of  resolutions  required:  resolutions  of  authoriza- 
tion, and  resolutions  of  allowance  or  approval  of 
the  claim.  The  two  are  necessary. 

Mr.  Fox.     Yes,  sir. 

Mr.  HOGE.  There  is  no  provision  in  the  law  on 
the  subject,  except  this,  which  appears  in  the 
rules  of  the  Board:  that  they  shall  pass  an  appro- 


107 


priation  bill  or  ordinance,  before  final  action  on 
any  claim,  or  claims  exceeding  $500. 

Mr.  Justice  KHODES.     That  is  in  the  law  ? 

Mr.  HOGE.  That  is  in  conformity  with  the  law. 
The  appropriation  is  one  thing,  and  the  approval 
is  another.  As  your  Honor  says,  there  are  two 
sets  of  resolutions,  and  this  is  their  order. 

Mr.  Justice  RHODES.  The  only  question  in  my 
mind  is.  as  to  whether  by  the  proper  construction 
of  the  statute,  the  Board  are  obliged  to  act  up  to 
the  precise  amount  in  the  appropriation  ordinance. 
In  other  words,  whether  an  appropriation  in  ex- 
cess of  the  sum  which  is  finally  allowed  on  a 
claim,  is  a  good  and  valid  publication  of  the 
notice  of  intention  for  that  claim. 

Mr.  HOGE.  There  is  no  provision  for  a  publica- 
tion at  all,  except  when  the  claim  is  first  intro- 
duced. 

Mr.  Justice  RHODES.  It  might  be  contended  on 
the  other  side — and  perhaps  is — that  no  appro- 
priation is  made  except  in  consequence  of,  and  in 
connection  with,  the  claim  allowed. 

Mr.  SWIFT.     Yes,  sir. 

Mr.  Justice  RHODES.  Here  there  was  a  claim 
for  $103, 500;  an  ordinance  of  appropriation  was 
passed  for  that  amount.  Then  the  Board  pro- 
ceeded to  investigate  the  claim;  and  they  finally 
passed  upon  a  claim  for  $92,000. 

Mr.  HOGE.  Yes,  sir;  but  what  they  did  after- 
wards was  not  required  to  be  published. 

Mr.  Justice  RHODES.  Well,  is  there  anything 
in  the  Statute  that  absolutely  requires  or  con- 
templates two  sets  of  resolutions:  one  of  authoriza- 
tion, and  the  other  of  allowance  of  a  claim? 


108 


Mr.  Justice  MoKiNSTRY.  In  other  words :  Can 
an  allowance  of  a  claim  be  duly  had  upon  a  pub- 
lication of  a  notice  of  intention  to  appropriate 
more  than  $500,  and  yet  less  than  the  sum  actu- 
ally finally  passed  and  approved,  with  respect  to 
the  particular  claim  ? 

Mr.  HOGE.  In  answer  to  your  question,  I  have 
read  already  the  68th  section.  That  provides  for 
the  legislative  action;  that  provides  for  the  ap- 
propriation. That  is  to  be  approved  by  the 
Mayor;  it  becomes  a  law  on  his  signature.  That 
resolution  or  ordinance  is  approved  by  the  Mayor. 

Then,  when  we  turn  to  Section  85,  we  read  as 
follows: 

"  All  other  lawful  demands  payable  out  of  the 
treasury,  or  any  public  funds  of  said  city  and 
county,  and  not  hereinbefore  in  this  section 
specified,  must,  before  they  can  be  allowed  by  the 
Auditor,  *  *  *  *  be  first  approved  by  the 
Board  of  Supervisors  ;  or,  if  the  demand  be  under 
$200,  by  the  President  and  two  members  thereof, 
appointed  by  the  Board  for  that  purpose."  *  *  * 

That  does  not  require  any  action  on  the  part  of 
the  Mayor  at  all. 

The  analogy  is  perfect  to  the  legislative  action 
in  an  appropriation  bill.  An  appropriation  bill 
appropriates  a  certain  amount,  or  not  to  exceed  a 
certain  amount,  for  certain  purposes — for  certain 
claims  or  demands  made,  or  to  be  made,  against 
the  State.  Then  these  demands  come  up  before 
the  different  offices  or  officers  of  the  governmental 
department  for  action,  and  if  they  are  allowed 
or  passed  or  confirmed,  their  status  and  validity 
is  determined  by  that  act.  Then  they  are  paid 


109 


out  of  that  previous  appropriation  which  had 
required  legislative  action,  and  legislative  action 
alone. 

Mr.  Justice  McKmsTRY.  When  the  Board  meet 
to  levy  taxes,  they  are  required  to  determine  how 
much  shall  be  levied  for  each  fund. 

Mr.  HOGE.     Yes,  sir. 

Mr.  Justice  McKiNSTRY.  Isn't  that  substantially 
an  appropriation  of  money  ? 

Mr.  HOGE.  No,  sir.  That  is  merely  done  for 
the  purpose  of  fixing  the  amount  of  taxation. 
That  fixes  the  taxation  list.  That  is  to  ascertain 
what  amount  is  to  be  raised  and  where  certain 
sums  shall  go — into  this  and  that  fund,  and  for 
such  purposes;  there  being  a  general  title  to  cer- 
tain divisions  of  county  and  State  money. 

Now,  there  is  a  discrepancy  on  the  face  of  this 
resolution  in  regard  to  dates.  The  resolution  of 
intention  provides  for  an  appropriation  for  the 
payment  of  a  bill  between  certain  dates,  embrac- 
ing a  period  within  four  years.  When  you  come 
to  this  last  resolution  or  approval,  it  approves  a 
claim  covering  the  whole  case,  but  giving  the 
dates  from  January  1st,  1871,  to  Nov.  30,  1872. 
It  is  evident  that  this  must  have  been  an  acci- 
dent or  a  clerical  error,  because  the  reference  is 
clear  and  explicit  all  the  way  through  to  this 
identical  claim. 

The  Board  having  intimated  its  intention  to 
approve  for  not  more  than  $92,000,  the  Spring 
Valley  Water  Company  agreed  to  present  their 
bill  for  that  amount;  and  this  resolution  cuts 
down  the  appropriation  for  the  purpose  specified, 


110 


and  authorizes  payments  only  to  this  extent,  to 
wit,  $92,000. 

It  is  said  that  the  company  did  not  present  their 
claim  originally  for  this  amount.  Of  course  they 
didn't.  That  is  significant  and  undenied,  and 
everywhere  asserted.  But  the  company  afterwards 
presented  a  demand  for  this  express  sum,  and  the 
Board  allowed  it.  It  was  approved  unanimously, 
and  it  was  approved  by  the  Mayor,  although  that 
was  unnecessary.  This  is  not  denied  by  any  por- 
tion of  the  answer;  on  the  contrary,  it  is  admit- 
ted. That  bill,  that  final  account,  was  in  the 
terms  of  the  original  claim,  precisely;  for  the 
same  portion  of  time. 

It  is  exactly  similar,  except  in  this  particular: 
whereas,  the  former  claim  was  for  $2,250  per 
month — the  amount  in  the  original  bill — this 
claim  is  for  $2,000  per  month,  making  the  sum  of 
$92,000  instead  of  the  sum  of  $103,500. 

There  could  have  been  no  mistake  as  to  the 
time  intended  to  be  covered  by  both  parties,  by 
the  final  appropriation. 

But  then  comes  Resolution  4022.  That  takes 
up  the  account  on  appeal,  and  passes  upon  it,  and 
provides  that  it  shall  be  in  payment  of  this  water, 
up  to  Nov.  30,  1872. 

This  is  not,  and  could  not  be  controverted  in 
the  answer.  The  allowance  was  within  the  appro- 
priation. And  it  was  clearly  understood  by  both 
parties  to  cover  the  entire  claim  as  originally  pre- 
sented in  the  original  $103,500  account. 

These,  as  it  seems  to  me,  were  all  matters  of 
fact,  to  be  submitted  to  the  Board  on  appeal. 
They  were  facts  ;  and  the  Board  passed  upon 
them. 


Ill 


There  was  something  said  about  advertising,  as 
required  in  the  69th  Section  of  the  Act.  It 
doesn't  seem  to  me  that  any  question  of  adver- 
tising figures  in  this  transaction,  one  way  or  the 
other — not  at  all.  It  is  not  within  the  provision 
of  the  69th  Section  at  all.  This  is  not  required  to 
be  advertised  : 

"All  contracts  for  building  and  printing  to  be 
done  for  the  said  city  and  county,  and  ordinary 
supplies  for  the  subsistence  of  prisoners,  must  be  given 
by  the  Board  of  Supervisors  to  the  lowest  bidder 
offering  adequate  security,  after  due  public  notice 
for  not  less  than  five  days,"  etc. 

There  is  nothing  in  the  answer  that  raised  any 
question  upon  this  matter  of  advertising.  It  is 
referred  to  in  the  argument,  but  not  raised  in  the 
issues  at  all. 

Mr.  SWIFT.  There  is  an  express  provision  for 
the  procuring  of  water  for  school  purposes;  that 
is  enumerated  among  the  purposes  for  which 
appropriations  may  be  made  by  the  Board  of 
Education. 

Mr.  HOGE.  Well,  I  have  already  answered  that 
portion  of  the  gentleman's  argument,  and  stated 
all  I  desire  to  say  on  that  subject. 


[The  Court  took  a  recess  for  one  hour.] 


112 


Continuation  of  Argument  of  J.  P.  Hoge. 


MONDAY  AFTERNOON,  May  14,  1877. 

Mr.  HOGE.  May  it  please  your  Honors,  I  will 
continue  but  a  very  few  minutes  longer.  There 
are  one  or  two  propositions  I  wish  to  say  a  few 
words  on. 

I  understand,  Mr.  Swift,  that  you  have  taken 
the  position  that  a  certain  section  of  the  Consoli- 
dation Act  applied  as  a  statute  of  limitations  on 
this  claim,  and  cut  off  the  power  of  the  Board 
to  allow  it. 

1  think  the  section  referred  to  is  Section  90  of 
the  Consolidation  Act.  [Reading.] 

"  SECTION  90.  The  salaries,  fees  and  compensa- 
tion of  all  officers,  including  policemen  and  em- 
ployees of  all  classes,  and  all  teachers  in  common 
schools,  or  others  employed  at  fixed  wages,  shall  be 
payable  monthly ;  and  any  demand  whatever  upon 
the  treasury,  hereafter  accruing,  shall  not  be  paid, 
but  shall  be  forever  barred  by  limitation  of  time, 
unless  the  same  be  presented  for  payment,  prop- 
erly audited,  within  one  month  after  such  demand 
became  due  and  payable;  or  if  it  be  a  demand 
which  has  to  be  passed  and  approved  by  the 
Board  of  Supervisors  or  Board  of  Education,  then 
within  one  month  after  the  regular  session  of  the 
proper  Board,  held  next  after  the  demand  accrued, 
or  unless  the  Board  of  Supervisors  shall,  within 


113 


six  months  after  the  demand  accrued  as  aforesaid, 
on  a  careful  investigation  of  the  facts,  certify  that 
the  same  is  in  all  respects  just  and  legal,  and  that 
the  presentation  of  it,  as  above  required,  was  not 
in  the  power  either  of  the  original  party  inter- 
ested or  his  agent,  or  the  present  holder,  in 
which  case  it  shall  be  barred  in  the  same  manner 
unless  presented  for  payment  within  twenty  days 
thereafter." 

That  section  has  no  application  in  a  case  like 
this. 

The  judgment  here,  by  express  provision  of 
law,  is  not  payable  until  audited,  and  until  the 
Auditor  shall  make  these  entries  in  his  record. 
Under  these  circumstances,  the  statute  hasn't  be- 
gun to  run  at  all — if  that  is  the  statute  in  force. 

But  he  also  shadowed  forth  the  idea  or  proposi- 
tion that  this  claim  was  barred,  in  consequence  of 
the  company  having,  for  a  certain  number  of 
years,  given  water  to  the  city  without  claiming 
any  compensation.  That  is  his  proposition,  if  I 
understand  him. 

Mr.  SWIFT.     I  made  that  as  an  argument. 

Mr.  HOGE.  The  meaning  of  the  law  referred  to 
by  counsel  in  this  branch  of  his  argument,  is  a 
subject  for  judicial  decision. 

I  refer  to  a  case  reported  in  the  Chicago  Legal 
News,  decided  by  the  Supreme  Court  of  the  United 
States.  There  are  two  cases.  In  these  cases  it  is 
held  that  the  construction  of  the  law  is  a  judicial 
question,  to  be  settled  by  the  Courts  and  the 
judges.  The  laws  of  a  State  are  to  receive  their 
authoritative  construction  from  the  State  Courts, 


114 


and  that  construction,  when  fixed  by  the  State 
Courts,  is  binding  on  the  U.  S.  Courts.  That 
which  purports  to  be  the  law  of  a  State  is, 
or  is  not  the  law,  according  as  the  true  fact  may 
be,  and  not  according  to  the  shifting  circum- 
stances of  the  parties.  It  would  be  perfectly 
immaterial  what  construction  these  parties  put 
upon  the  law.  That  don't  affect  the  question  one 
way  or  the  other.  This  Court  is  to  decide  as  to 
what  the  law  is. 

There  is  another  proposition  assumed  in  the 
case,  although  the  counsel  did  not  discuss  it.  I 
don't  recollect  whether,  in  his  brief,  he  lias  dis- 
cussed it  or  cited  authorities  upon  it.  That  is, 
that  the  resolution  of  the  Board,  after  the  initia- 
tion of  these  proceedings,  had  been  repealed  by 
subsequent  resolution;  and  that  that  justified  the 
action  of  the  Auditor. 

That  proposition  is  very  thoroughly  discussed 
by  the  learned  Judge  of  the  District  Court  who 
decided  this  case.  His  opinion  is  in  the  record, 
and  the  authorities  there  cited. 

I  have  a  large  number  of  additional  authorities 
which  were  not  cited  by  the  Judge  of  the  Dis- 
trict Court,  which  I  will  not  take  up  time  now  to 
examine  and  comment  on.  With  the  permission 
of  the  Court  I  may  add  them  to  my  brief. 

The  matter  is  very  thoroughly  discussed  in  a 
case  cited,  where  the  opinion  was  delivered  by 
Judge  Field.  It  is  in  the  2d  Wallace.  When  a 
perfect  right  of  action  has  accrued  on  a  contract 
which  is  authorized  by  a  statute,  neither  the 
contract  nor  a  suit  pending  for  its  enforce- 
ment will  be  affected  by  the  repeal  of  the  stat- 


115 


ute.  Of  course,  if  1  am  correct  in  my  propo- 
sition as  laid  down  here,  there  could  be  no 
repeal  of  the  decision  of  the  Board,  of  its  own 
motion,  after  these  proceedings  were  introduced. 
After  the  judgment  of  the  Court  had  been  acted 
upon  by  the  parties,  and  an  account,  in  pursuance 
of  that  judgment,  had  been  approved  and  allowed, 
no  appeal  of  this  kind  can  affect  the  question. 

Where  these  questions  generally  come  up  they 
are  questions  arising  on  State  legislation.  Where 
a  Legislature  undertakes  to  repeal  a  former  stat- 
ute, the  question  arises  as  to  how  far  private 
rights  are  affected  by  the  exercise  of  legislative 
power  in  a  given  case.  There  is  a  question  as  to 
how  far  a  Legislature  could  repeal  previous  legis- 
lation under  which  rights  have  grown  up.  But  I 
never  heard  of  a  case  before  where  it  was  at- 
tempted to  be  asserted  that  an  inferior  corporate 
body  or  board  could,  upon  their  own  motion  or 
resolution,  change  the  effect  of  their  contract  or 
liability  to  third  persons,  whether  that  contract 
was  express  or  implied ;  and  especially  where  the 
contract  had  assumed  and  taken  the  form  of  a 
judgment,  it,  as  we  contend,  is  conclusive  of  the 
rights  of  the  parties.  In  this  case  at  bar  here, 
the  property  of  the  plaintiff  has  been  devoted  to 
the  uses  of  the  city  for  a  very  long  period  of 
time,  and  this  has  been  done  with  the  knowledge, 
and  with  the  assent,  and  upon  the  order  of  the 
government  of  the  city  and  all  its  authorities.  A 
claim  is  presented  for  this  property.  This  Board 
take  up  the  account,  they  pass  upon  it  judicially, 
and  allow  a  claim,  and  order  it  paid.  And  now, 
when  a  case  comes  here  involving  the  question  as 


116 


to  whether  the  officer,  whose  duty  it  is  to  enter 
the  approved  account  in  his  book,  shall  perform 
his  prescribed  service,  it  is  alleged  that  the  Board 
has  repealed  the  resolution  and  judgment  by 
which  the  claim  was  allowed,  and  that,  therefore, 
this  officer  can't  take  any  action  upon  it.  It 
seems  to  me  that  the  proposition  is  absurd  upon 
its  face. 

There  is  another  proposition  involved  here  that 
is  very  much  discussed  in  some  four  or  five  cases 
by  our  Supreme  Court,  in  relation  to  implied  con- 
tracts and  the  liability  of  corporations,  and  muni- 
cipal corporations  as  well — with  reference  to  im- 
plied contracts.  In  such  a  case  as  this,  the  law 
implies  liability  on  the  part  of  the  city  to  pay  for 
such  property.  In  the  case  of  executory  con- 
tracts, the  rule  would  be  different. 

These  matters  are  fully  discussed  by  our  Supreme 
Court  in  the  cases  of  the  Gas  Company  vs.  San 
Francisco,  9th  Gal.,  469;  Argenti  vs.  City  of  San 
Francisco,  16th  Cal.,  282;  Pixley  vs.  Western 
Pacific  R.  R.  Co.,  33d  Cal.,  page  33;  McCracken 
vs.  City  of  San  Francisco,  16th  Cal.,  631;  and  in 
Dillon  on  Municipal  Corporations,  sections  383 
and  4,  and  notes. 

I  have  gathered  these  cases  here  together.  They 
hold  clearly  that  municipal  corporations  stand 
upon  no  higher  plane  than  the  ordinary  corpora- 
tions; that  both  are,  like  individuals,  subject  to 
the  rules  of  justice;  and  contracts  are  implied 
under  the  same  circumstances  in  all  of  them.  If 
the  city  obtained  the  money  of  theirs,  it  is  her 
duty  to  refund — not  from  any  contract,  but  from 
the  general  obligation  to  do  justice  which  binds 


117 


all  persons,  whether  natural  or  artificial.  If  she 
obtained  other  property  which  does  not  belong  to 
her,  it  is  her  duty  to  restore  it;  or,  if  used  by  her, 
to  render  an  equivalent  in  due  manner  from  the 
like  general  obligation.  In  these  cases  she  does 
not,  in  fact,  make  any  promise  on  the  subject; 
but  the  law,  which  always  intends  justice,  implies 
one,  and  her  liability,  thus  arising,  is  said  to  be 
a  liability  upon  an  implied  contract,  and  it  is 
no  answer  to  a  claim  resting  upon  a  contract  of 
this  kind  to  say  that  no  ordinance  has  been  passed 
upon  the  subject,  or  that  the  liability  of  the  city 
is  void  when  it  exceeds  the  limit  of  the  charter. 

The  obligation  is  imposed  by  the  general  law, 
and  is  independent  of  any  ordinance  and  the  re- 
straining clauses  of  the  charter.  This  is  the  law 
as  stated  in  Argenti  vs.  the  City  of  San  Francisco, 
pages  282  and  283. 

Now  this  reasoning  would  apply  very  strongly 
to  the  case  which  is  before  the  Court. 

I  look  upon  all  these  provisions — these  minu- 
tiae requisitions  of  the  Consolidation  Act,  as  to 
the  form  of  the  accounts  and  the  indorsement  of 
their  numbers  upon  them,  etc. — as  simply  di- 
rectory to  the  officers;  that  they  do  not  affect  the 
merits  of  a  claim  against  the  city.  The  Board 
act  judicially,  under  the  power  given  to  them  to 
pass  upon  all  such  claims  and  accounts,  and  have 
the  endowed  right  to  dispose  of  them  as  they  see 
fit,  and  I  hold  that  their  decision  is  conclusive, 
without  respect  to  any  attention  to  mere  punc- 
tilios of  appearance  in  the  premises.  Their  au- 
thority, and  the  conclusiveness  of  their  action, 
does  not  depend  upon  compliance  with  every 


118 


technical  rule  or  proceedings.  But  under  their 
general  judicial  power  to  approve  and  dispose  of 
claims  which  come  before  them,  they  act  in  a 
final  and  binding  manner.  If  the  Board  does  not 
comply  with  all  the  minute  particulars  of  forms 
which  may  in  any  instance  be  prescribed,  that 
does  not  in  any  manner  affect  the  validity  of 
their  action  or  its  conclusiveness  in  the  premises. 
And  no  officer  can  go  behind  that  action,  and  say 
that  certain  little  requisites  have  not  been  com- 
plied with — that  certain  publications  have  not 
been  had — that  certain  indorsements  have  not 
been  made  on  a  particular  bill  or  claim.  If  the 
Board  does  not  resort  to  technical  modes  of  de- 
feating an  honest  claim,  but,  i.n  the  pursuance  of 
its  undoubted  powers,  approves  and  allows  and 
orders  paid  our  claims,  the  subordinate  officers, 
having  but  a  ministerial  duty  to  perform,  can't 
get  behind  the  action  of  the  Board  and  refuse  to 
perform  their  duties  in  carrying  out  the  decision 
of  the  Board,  which  they  have  declared  to  be 
final.  You  can  no  more  go  behind  the  action  of 
the  Board  of  Supervisors,  in  such  a  case  as  this, 
in  the  manner  which  has  been  attempted  here, 
than  you  can  go  behind  the  judgment  of  the 
District  Court  or  of  the  Supreme  Court,  on  the 
ground  of  some  technical  informalities  in  the 
clerical  record  of  the  proceedings  of  these  tri- 
bunals. 

These  are  matters  over  which  they  have  juris- 
diction, and  nobody  can  gainsay  that  fact.  Apart 
from  this  question  in  relation  to  furnishing  water 
free,  they  have  jurisdiction  over  the  whole  subject 
matter.  It  is  submitted  to  them,  and  they  are 


119 


created  by  the  law  the  special  judicial  tribunal  to 
pass  upon  all  these  things;  and  when  they  have 
done  so,  the  mouth  of  the  subordinate  officer  is 
closed. 

Now,  I  do  not  propose  to  go  into  a  number  of 
these,  questions — collateral  questions  and  side 
issues — which  have  been  discussed  so  much.  I 
think  I  have  taken  up  the  main  propositions  and 
considered  them.  I  have  stated  all  I  desire  to  say 
upon  them. 

The  briefs  will  contain  the  authorities  upon 
these  matters  which  I  have  discussed ;  and  now  I 
shall,  as  far  as  I  am  concerned,  submit  the  case 
upon  what  I  have  said. 


8  1     5 


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